Bizarro: The Surreal Saga of America's Secret War on Synthetic Drugs and the Florida Kingpins It Captured 9780520387966

Table of contents :
Contents
Intro: Bizarro
1. Humpty Dumpty’s Designer-Drug War
2. Frozen Addicts, Emergency Powers
3. Dr. Frankensteins
4. Creating a Monster
5. Controlling the Spice
6. Team Player
7. Ryan Goes West
8. Summer Jam (Leaving Las Vegas)
9. Come on in, Cosey
10. Florida Sunshine
11. Information Asymmetry
12. Being Civil—at First
13. The Right to an Attorney
14. Clarence Thomas on Bath Salts
15. Curious Animal
16. Egalitarian Principles
17. A Case about Drug Dealers
18. Dynamite
19. Worse Than Crack
20. The Defense Calls Arthur Berrier
21. Their Kind of Person
22. Bizarre Relationships
23. Tooth and Nail
24. Synthetic Kings Crowned
25. Mandatory Minimums over Zoom
26. Devil’s Advocate
27. Latest Front
Outro: The Story Was Quite Clear
Acknowledgments
Notes
Index

Citation preview

Bizarro

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Bizarro the surreal saga of america’s secret war on synthetic drugs and the florida kingpins it captured

Jordan S. Rubin

university of california press

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University of California Press Oakland, California © 2023 by Jordan S. Rubin Library of Congress Cataloging-in-Publication Data Names: Rubin, Jordan S., 1986- author. Title: Bizarro : the surreal saga of America's secret war on synthetic  drugs and the Florida kingpins it captured / Jordan S. Rubin. Description: Oakland, California : University of California Press, [2023] |  Includes bibliographical references and index. Identifiers: lccn 2022031932 (print) | lccn 2022031933 (ebook) |  isbn 9780520387959 (cloth) | isbn 9780520387966 (ebook) Subjects: lcsh: Drugs of abuse—Law and legislation—United  States—Criminal provisions. | Synthetic drugs—Law and legislation—United States—Criminal provisions. | United States. Controlled Substance Analogue Enforcement Act of 1986. | Prosecution—United States. Classification: lcc kf3890 .r83 2023 (print) | lcc kf3890 (ebook) |  ddc 345.73/0277--dc23/eng/20221201 LC record available at https://lccn.loc.gov/2022031932 LC ebook record available at https://lccn.loc.gov/2022031933 Manufactured in the United States of America 32 31 30 29 28 27 26 25 24 23 10 9 8 7 6 5 4 3 2 1

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For Rachel, Jack, and Duke

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Contents

Intro: Bizarro

1



1. Humpty Dumpty’s Designer-Drug War

4



2. Frozen Addicts, Emergency Powers

9



3. Dr. Frankensteins

12



4. Creating a Monster

19



5. Controlling the Spice

27



6. Team Player

34



7. Ryan Goes West

41



8. Summer Jam (Leaving Las Vegas)

47



9. Come on in, Cosey

53



10. Florida Sunshine

62



11. Information Asymmetry

73



12. Being Civil—at First

78



13. The Right to an Attorney

85



14. Clarence Thomas on Bath Salts

92



15. Curious Animal

101



16. Egalitarian Principles

105



17. A Case about Drug Dealers

110

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18.

Dynamite

121

19.

Worse Than Crack

127

20.

The Defense Calls Arthur Berrier

138

21.

Their Kind of Person

147

22.

Bizarre Relationships

151

23.

Tooth and Nail

160

24.

Synthetic Kings Crowned

164

25.

Mandatory Minimums over Zoom

178

26.

Devil’s Advocate

184

27.

Latest Front

191

Outro: The Story Was Quite Clear

196

Acknowledgments

201

Notes

203

Index

249

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Intro bizarro

Burton Ritchie called the cops on himself. It was the summer of 2012 and the Drug Enforcement Administration just launched Operation Log Jam, the first nationwide synthetic-drug takedown.1 Among the agency’s targets was a Las Vegas warehouse that pumped out kilos of “spice.” The drug misleadingly known as “synthetic marijuana” or “fake weed” was sold in colorful, gram-quantity packets at head shops and over the internet.2 Spice was more potent than the natural plant and, oddly enough, legal. Or so it seemed. The feds would later call Zencense, the Florida-based company that ran the warehouse, one of the world’s largest spice operations.3 Burton owned Zencense. His 20 percent partner was Ben Galecki.4 The men crossed paths at Narcotics Anonymous, of all places, when they were teenagers in the early 1990s.5 The industry they found themselves in decades later was shifty. Merchants marketed spice as “incense” and “potpourri,” but no one bought the stuff to create a relaxing scent in the living room. Products were labeled “not for human consumption,” but everyone consumed them.6 Whatever the morality of the venture—a lucrative one, to be sure— Burton and Ben were convinced the chemicals inside of their spice, called 1

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intro

synthetic cannabinoids, were legal. They paid for lab tests to check for controlled substances. They quarantined chemical shipments, imported from China, before getting the green light to distribute to shops around the country. They registered as an LLC and paid taxes.7 After the DEA raided his warehouse, Burton called a cop he knew in Pensacola, Florida, where they were headquartered. The cop put him in touch with DEA Special Agent Claude Cosey. Burton explained to Cosey over the phone that night why he thought the feds were mistaken, given the company’s compliance measures. He invited the agent to visit their Pensacola facility and see for himself. Cosey accepted the invitation, telling Burton he’d come the next morning—and not to worry in the meantime.8 “Don’t lose a minute’s sleep over this,” the DEA agent told the man whose drug warehouse was raided that day. “If you had anything to worry about, we wouldn’t be talking over the phone.” 9 They met the next morning. Burton gave Cosey a tour. He handed the agent packets of Zencense spice, a vibrant array of catchy brand names, like Bizarro, with its Superman-themed purple and yellow label, marked with a backwards “S.”10 Burton told Cosey he’d shut down the business if the agent told him to. Cosey didn’t. The lawman said it looked like Burton was trying to comply with the law.11 Burton and Ben moved on with their lives, embarking on successful careers in film and entertainment.12 So how did they land in federal prison, convicted as drug kingpins, after being indicted years later in three states and taken to trial three times?13 The answer lies in the weirdest chapter of the War on Drugs, a synthetic saga that’s unfolding to this day. It stems from a little-known Reagan-era law called the Analogue Act. The 1986 law bans substances that are “substantially similar” to controlled ones.14 But what does “substantially similar” mean? The amorphous test has left people guessing about what’s legal. Unlike the traditional war against heroin, cocaine, and other well-known drugs, when it comes to new substances, the government doesn’t always announce which ones it thinks are illegal before bringing charges.15 Adding to the uncertainty, the DEA’s

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bizarro

3

own scientists have disagreed about which chemicals are substantially similar to others. Indeed, a senior research chemist with the agency thought the spice Burton and Ben sold was legal.16 That would have seemed to save them, but the government chemist was arrested before he could take the stand in their defense.17

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Humpty Dumpty’s Designer-Drug War

In the spring of 1990, Charles Burton Ritchie sold a foil-wrapped sugar cube to an undercover cop at a Pensacola nightclub.1 The state prosecutor’s office brought LSD charges against the nineteen-year-old addict.2 The judge set bail at $10,000.3 That was more than Burton (he goes by his middle name) could afford on his mall-store salary from Cutlery World.4 His mom Linda refused to bail him out. She thought her son was on the wrong path.5 He’d been drinking whatever liquor and taking whatever drugs he could get his hands on.6 Though he was charged with pushing acid, there was nothing revolutionary or spiritual about Burton’s offense. That March night at The Place on East Intendencia Street, Burton was turning a profit, however meager.7 The Alabama-born hustler had what one friend called a selling-ice-toEskimos persuasiveness;8 what another called the ability to sell shitcovered popsicles to women in white gloves.9 The cube was just another widget for Burton, no different from the cinnamon toothpicks and lollipops he sold growing up.10 Burton’s mom worked with his public defender to put him in a pretrial diversion program.11 The judge gave him probation, accepting a no4

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contest plea to the drug charge. “It appearing to the satisfaction of the Court that you are not likely again to engage in a criminal course of conduct,” the judge’s boilerplate order read, “the ends of justice and the welfare of society do not require that you should presently be adjudged guilty and suffer the penalty authorized by law.” The deal came with a laundry list of conditions, like drug testing, counseling, and paying various court fees.12 The arrangement kept Burton clean. He hasn’t used since he drank a celebratory beer after his release that summer.13 It also kept him out of prison. For a couple decades. Meanwhile, another young entrepreneur faced drug charges out West in Colorado. The defendant there beat the case, too, but only after a strange court battle, foreshadowing one that Burton would fight years later. •

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Damon Forbes was a biochemistry student at the University of Colorado.14 He ran what the feds branded a “phony” company, Isotech Labs.15 Its address was his mom’s house in Denver.16 Through his company, Forbes ordered a substance called AET.17 It was previously sold as an antidepressant, under the brand name Monase, before the “psychic energizer” was taken off shelves in 1962, following reports of negative side-effects.18 But AET still wasn’t controlled. It was available directly from chemical companies. Writing on Isotech Labs letterhead in 1989, Forbes ordered AET “for laboratory use only, not for drug, household or other uses.”19 Undercover agents bought thousands of dollars’ worth of AET from Forbes and his associates. The sellers supposedly said it was Ecstasy, but lab tests showed it was AET, not the controlled substance MDMA that’s synonymous with the euphoric drug.20 But without a law on the books saying AET was illegal, what could the government do? As it turns out, there was a law on the books saying AET—and, possibly, anything else—might be illegal: the Analogue Act. It punishes people who sell drugs that are “substantially similar” to controlled ones.21 But the DEA chemist who examined the AET in Forbes’s case didn’t think it was substantially similar to a controlled drug. That meant it

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wasn’t an “analogue,” in the government chemist’s view. In other words, he thought it was legal. Nonetheless, the DEA brought the case to the Colorado US Attorney’s Office. But after he heard about that DEA chemist’s opinion, Assistant US Attorney (and future US Congressman) Ken Buck declined to prosecute in 1990.22 That would have seemed to settle the matter in Forbes’s favor. The government forged ahead. In 1992, the same US Attorney’s Office charged Forbes and others (including his mom) under the Analogue Act.23 Different prosecutors and a different DEA chemist backed the effort.24 Seizing on that internal conflict, Forbes moved to dismiss the case. He argued the Analogue Act was unconstitutional, at least when it came to AET. He said the law failed to give clear notice of what’s illegal. “A citizen cannot determine whether AET is a controlled substance analogue,” his motion read. “Apparently the Government determines the issue depending upon which ‘expert’ it consults.” 25 The government’s chosen DEA expert against Forbes, Frank Sapienza, helped write the Analogue Act.26 He defended the law and its application to AET. Unlike the first DEA chemist, he thought it qualified as an analogue.27 The judge overseeing the case, Lewis Babcock, was appointed to the bench by Ronald Reagan, who signed the Analogue Act into law.28 Judge Babcock held a hearing on the novel issue in November 1992.29 Forbes subpoenaed Roger Ely, the DEA chemist who thought AET wasn’t an analogue.30 Testifying at the hearing, Ely explained the difficulty he faced in trying to conduct the substantial-similarity analysis. “There is no guideline,” the chemist said, when pressed by the prosecutor on cross-examination. “There certainly isn’t a definition of what is substantially similar in the chemistry text that I have looked in, so there’s really no guidance as to how to draw that kind of a conclusion.” 31 On cross-examination by the defense, the government’s expert, Sapienza, said “part of the problem here” was that “we have different people using different methodologies.” 32 Judge Babcock dismissed the case. “I without any doubt conclude that the statute here under the circumstances applies no fair warning of the proscribed conduct,” the judge said. “Not only is there a lack of scientific consen-

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sus on this question between the government and defense,” he said, “there’s a lack of scientific consensus on this very question intra-governmentally.” 33 The judge further took the government to task in his later-published opinion. “Perhaps more importantly in this case,” he wrote, “the analogue definition as applied to AET is so vague as to permit arbitrary enforcement.” Noting that the first prosecutor, Buck, rejected the case in 1990, Judge Babcock observed, “Now, in 1992, Forbes is prosecuted by the same office for the same alleged offense. Nothing changed in the intervening two years except the personalities of the government prosecutors and their hand-picked DEA chemists.” The judge wrote that the case “illustrates precisely the evils attending delegation of basic policy decisions for ad hoc, subjective resolution by those who wield prosecutorial power.” 34 The Reagan appointee’s rebuke sounded like it could have come from a fierce drug-war critic. In fact, some of his language wasn’t far off from the words of a counterculture chemist known as the “Godfather of Ecstasy.” •

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Alexander “Sasha” Shulgin had a straitlaced resume, in some respects. The renowned biochemistry PhD had been a top researcher for Dow Chemical and enjoyed a working relationship with the DEA.35 But he became best known for popularizing MDMA, and for cataloging his synthesis and use of psychoactive compounds.36 With his wife, Ann, he authored two classic books at the intersection of science, psychic exploration, and drug-war criticism. The first, published in 1991, was PiHKAL, short for Phenethylamines I Have Known and Loved.37 Phenethylamines include the MDMA whose prevalence Shulgin was credited with (or blamed for).38 The sequel, in 1997, was TiHKAL.39 It dealt with tryptamines, which include the AET from Forbes’s case and the LSD that landed Burton Ritchie in a Florida county jail.40 But the DEA saw Shulgin’s genre-defying works as something simpler: “cookbooks on how to make illegal drugs.” 41 Agents raided Shulgin’s home lab in California after he published PiHKAL, which led to him losing his DEA license to research banned drugs.42 Shulgin was an early critic of the Analogue Act. In a 1987 lecture, he called the recently passed statute “one of the most freedom restricting

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things that has ever been put into the law.” He wondered: Is the structure of a 1986 Pontiac’s taillight “substantially similar” to a 1984 Chevrolet’s? “Well,” he said, “in some ways yes and some ways no.” Years before the Forbes case showed that the DEA couldn’t agree with itself on the issue, Shulgin told students, “You’re going to have a conflict of expert testimony: ‘They’re totally different!’ ‘They’re substantially the same.’ ” 43 The chemist continued to pick the law apart in a 1990 letter to the Journal of Forensic Sciences, which became a defense exhibit in the Forbes case.44 Shulgin began with a quote from the upside-down world of Alice in Wonderland, in Lewis Carroll’s Through the Looking Glass: “When I use a word,” Humpty Dumpty said, in a rather scornful tone, “it means just what I choose it to mean—neither more nor less.” “The question is,” said Alice, “whether you can make words mean so many different things.” “The question is,” said Humpty Dumpty, “which is to be master—that’s all.”

The term “substantially similar,” Shulgin argued in his letter, “is hopelessly vague.” He alleged it was “crafted with this very goal in mind. By designing the net which has a completely variable mesh size, one can catch whatever fish one wishes to and let escape another fish that is not wanted.” 45 Shulgin foresaw problems with the law that would plague defendants, prosecutors, judges, and juries for decades to come. “There is no objective standard to the term ‘similar’ and certainly none for the phrase ‘substantially similar,’ ” he wrote. “There is no ‘right’ answer. There can never be one. And yet, charges are being brought and convictions are being obtained based on the ‘scientific’ opinions presented in criminal cases.” 46 Eventually, Shulgin predicted, “a challenge to this preposterous wording will be made that will result in its removal from the law statutes. But until then, I fear that it will be imposed by the law enforcement groups when desirable, and ignored at other times. Any law that allows selective enforcement,” he wrote, “is a bad law.” 47 But how did this bad, vague law—as Shulgin put it—come to pass? The rules of the drug game were too clear.

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2

Frozen Addicts, Emergency Powers

Doctors were stumped. A series of patients, all heroin users, could barely move or speak. It looked like they had Parkinson’s, but they seemed too young for the debilitating disease.1 It turned out the “frozen addicts,” as they’d be called, were crippled by a synthetic batch gone wrong in early 1980s California. The problem stemmed from the amateur synthesis of MPPP, an opioid that mimicked the controlled painkiller Demerol. Clumsy MPPP production created a byproduct called MPTP, which, doctors learned, is what made the patients freeze.2 The bad drug batch led to groundbreaking research. Scientists could give MPTP to primates—who’d freeze like the addicts did—to study the disease. “It was ironic” that designer-drug dealing “started a research revolution,” the doctor who treated the patients recalled in his book on the ordeal.3 But as far as law enforcement and politicians in the tough-on-crime ’80s were concerned, it was the latest sign that the good guys were a step behind the bad guys. The frozen-addicts incident was deemed the “first designer drug disaster,” but it was just one piece of the puzzle, as authorities battled a seemingly endless stream of drugs simulating fentanyl and other controlled substances.4 Gary Henderson, the University of California 9

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pharmacologist who coined the “designer drug” term, told the Chicago Tribune in 1985 that the answer lies in understanding users, not drugs. “You can play with the structures endlessly,” Henderson told the paper. “Once you know the chemistry, there are almost an unlimited number of chemicals out there that could be made and used and abused. Passing laws is not the answer,” he said. “We could spend the rest of our lives compiling lists of illegal chemicals.” 5 The government, meanwhile, grew frustrated with the process for listing which chemicals were illegal. The 1970 Controlled Substances Act, signed into law by drug-war declarant Richard Nixon, laid out “schedules” specifying which drugs were banned.6 But that specificity created a loophole, in law enforcement’s view, one that underground chemists and dealers exploited by tweaking their recipes as drugs were scheduled. It took months or more to list a new drug under the 1970 act, which required a multifactor analysis and review by health officials. The act also made the government give notice of its scheduling moves; plus, the public could weigh in and raise legal challenges.7 To speed up that timeline, Congress created emergency, temporary drug-scheduling power in 1984.8 The feds could now bypass some of the bureaucracy, so long as the attorney general found such emergency action was “necessary to avoid an imminent hazard to the public safety.” 9 The emergency-scheduling provision was just one part of the Comprehensive Crime Control Act of 1984, a massive bill that passed on a bipartisan basis. Ronald Reagan signed it. As a Justice Department lawyer put it in 1985, the statute “contains the most significant changes in the federal criminal justice system ever enacted at one time.”10 It ran the gamut of punitive measures, like eliminating parole, broadening asset-forfeiture, and increasing penalties for marijuana and other drugs. The DEA appreciated the sped-up scheduling power. The agency used it to outlaw MPPP (whose mutation caused the “frozen addicts”), MDMA (over objection that scheduling threatened research and therapeutic use), and several fentanyl analogs.11 But it wasn’t enough. While the agency could act more quickly, it was still reacting, drug-by-drug. And officials had to abide some semblance of regulatory compliance, especially if they wanted to make any temporary bans permanent. The government wanted a better weapon in its arsenal.

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Attorney General Edwin Meese III warned of new drug dangers in a 1985 speech to the San Diego Kiwanis Club. He informed the civic group that designer-drug use rose in 1984 and would likely continue to do so in 1985. That was the bad news. The good news, Meese told the crowd: Marijuana use was down.12 That summer of 1985, the Justice Department sent lawmakers a letter. It outlined the designer-drug problem, in DOJ’s view, and provided the language to solve it. The solution was novel: outlawing drugs that hadn’t been identified or even created yet. DOJ’s letter defined a “designer drug” as one that had either a chemical structure or intended effect that was “substantially similar” to a controlled substance in Schedules I or II.13 Under the 1970 Controlled Substances Act, Schedules I and II house the most dangerous drugs, according to the government.14 The letter didn’t explain how the department arrived at the term “substantially similar,” but the phrase existed elsewhere in law, at least in the civil realm, like in copyright litigation.15 At any rate, the letter argued that even the 1984 law left open a menacing loophole, “because activity is not proscribed until the substance in question is controlled through the emergency scheduling process.”16 That is, a drug wasn’t illegal until it was illegal. Politicians of both parties were eager to help close that perceived loophole. “For once, we may be in a position to launch a preemptive strike and to avoid the difficulties of having to play catch-up,” Senate Judiciary Committee chair Strom Thurmond, Republican of South Carolina, said at a 1985 hearing. The committee’s ranking Democrat, Joseph R. Biden of Delaware, agreed. He said the designer-drug bill addressed “a new and expanding law enforcement and drug abuse problem that could become the drug abuse problem of the 1980s and 1990s.”17

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Dr. Frankensteins

The Justice Department sent one of its top lawyers, Stephen Trott, to testify in support of the designer-drug bill. The Washington Post called Trott “a true believer who doesn’t much worry about what the American Civil Liberties Union might think of his approach.”1 On his way to becoming DOJ’s third-ranking official and then a federal judge appointed by Reagan, the career prosecutor blamed many of the country’s problems on a “permissive attitude” toward drugs in the 1960s and ’70s.2 Long before making a name for himself as a law enforcer, Trott was a member of The Highwaymen, a collegiate folk group that topped the charts in the ’60s with a cover of the African American spiritual “Michael Row the Boat Ashore.” 3 The New York Times deemed Trott’s path an unlikely saga, “in which a singer out of the Phil Ochs-Joan Baez era goes on to hold the third-highest post in the Edwin Meese Department of Justice.” 4 Trott explained the substantial-similarity test to senators at a 1985 hearing. He said that he talked to DEA chemists and learned that the test is “a scientific exercise that is accepted by the scientific community.” He said it “simply presents a question of fact that can be adequately coped with in court in any prosecution that ensues.” 5

12

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It was important to the government that prosecutors need only prove substantially similar structure or effect. Not both. In accompanying written remarks, Trott said that evidence of structural similarity might be hard for jurors to grasp, so the effects option gave them another way to convict. It helped avoid what Trott called “a serious loophole.” 6 Yet, he expected defendants to challenge the law’s constitutionality, for being too vague. He sought to pre-rebut such attacks. The law “would easily withstand constitutional attack on vagueness grounds,” Trott assured lawmakers.7 The Senate Judiciary Committee also heard from the American Chemical Society, a congressionally chartered group that supported the bill. Sort of. The group liked the idea but didn’t like DOJ’s either/or approach. A representative told senators that “legitimate research would be more adequately protected if the ‘or’ in this definition were changed to ‘and.’ This change of ‘or’ to ‘and’ would emphasize the designing of these substances to produce substantially similar biological effects to those of controlled substances.” 8 But that scientific concern missed the point, Trott complained. He told senators that it’s “extremely time-consuming to gather adequate pharmacological evidence regarding a drug’s effect.” He said requiring proof of both structure and effect would make charges “very difficult to prosecute successfully in court.” 9 Asked if the chemical society’s approach would address vagueness concerns, Trott said no. The vagueness attack would come against the substantial-similarity test. “Since the ‘substantial similarity’ standard applies in the proposal to both the chemical structure and effect of the drug,” he said, “requiring the prosecution to meet both tests would not make the proposal any more precise.”10 •

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DOJ also pressed its case in the House of Representatives, which pushed its own version of the bill. Attorney General Meese wrote to the Appropriations chair in March 1986, regarding the “growing threat posed by the spreading use of synthetic or designer drugs.” Meese wrote that the department

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considered the proposed law “a crucial element in the Government’s efforts to curtail the spread of these dangerous substances.”11 In May, Trott told the House Judiciary subcommittee on crime that the feds had backed off the “designer” terminology. Its allusion to the fashion world, he said, “unfortunately trivializes the problem from a law enforcement standpoint while potentially increasing the attractiveness of these substances from a drug abuse standpoint.” He urged the term “analog” instead.12 As he did in the Senate, Trott gave examples of why the government needed more power to tackle these analogs and the people making and selling them. He pointed to a clandestine chemist who made analogs of fentanyl, the synthetic opioid that was scheduled. Because the analogs weren’t controlled, Trott lamented, the chemist could only be charged with relatively minor offenses, like manufacturing drugs without FDA registration and conspiring to misbrand drugs.13 When it came to the infamous analog China White, Trott recalled, it took the DEA over a year to get a sample.14 With the 1984 emergency-scheduling law, the government could react more quickly, but it was still reacting. It wanted to be proactive, and to put dealers away who tried to skirt law enforcement’s conception of the law. Not every congressional witness was sympathetic to the proposal. Harvard psychiatry professor Lester Grinspoon, a marijuana-legalization proponent, called the substantial-similarity test “both vague and unscientific.”15 He criticized the law for imposing criminal penalties without requiring proof that a drug had harmed anyone. Instead, Grinspoon explained, “the law relies on the Justice Department officials and the courts to evaluate the molecular structure of a chemical or read the mind of its manufacturer.”16 As for the effects prong, in particular, Grinspoon called it speculative. “What may seem to be a small change in the chemical structure of a drug sometimes leads to a large difference in pharmacological effect,” he said.17 Grinspoon’s testimony echoed an op-ed he coauthored around that time, in which he observed that “science cannot determine when one molecule is ‘substantially similar’ to another any more precisely than it can define when life begins.”18 California Representative Daniel Lungren, a Republican from the land of the “frozen addicts,” said that, as the son of a doctor, he appreciated

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Grinspoon’s concern. “But damn it, we have got to do something about it,” the congressman said.19 “You have heard the testimony about the money involved. So if the guy produces something for three months on the street he may make himself a multimillionaire during that period of time. We come in, even under emergency scheduling, and we say that is illegal from now on. We can’t prosecute him for what he has done up to that point in time.” 20 Lungren wanted to attack the “contemporary Dr. Frankensteins who are transforming human beings into chemical zombies.” 21 He said the proposed law meant agents would no longer play “cat and mouse” with underground chemists.22 The cat-and-mouse game would continue. But a star basketball player’s death the following month helped the cat sharpen its claw, not just for designer drugs but for all drugs—like crack-cocaine, an emerging enemy in the war. •

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In the June 1986 NBA draft, the Boston Celtics used their first-round pick on Len Bias.23 Chosen second overall, the University of Maryland standout drew comparisons to another young phenom: Michael Jordan.24 But the twenty-two-year-old died two days after the draft. He had cocaine in his system.25 Don Rogers, a football player for the Cleveland Browns, died of a cocaine-induced heart attack that same month, right before his wedding.26 Bias’s death, especially, became a rallying cry for tougher drug laws, as media accounts dramatized crack-cocaine ravaging cities and their Black residents—and threatening the suburbs.27 Bias had used powder cocaine, but that didn’t alter the narrative.28 As one academic account described the era, “reporters found ‘experts’ who provided scary antidrug sound bites and presented frightening, false generalizations as fact.” 29 Democrats saw the chance to be tough on crime—even tougher than Republicans. Speaker of the House Tip O’Neill, a Democrat from Massachusetts, home of the Celtics, told his caucus to come up with some “goddamn legislation.” 30 The House Judiciary’s crime subcommittee held a hearing in July. “The recent deaths of two young, gifted athletes—Len Bias and Don Rogers—have once again focused public attention on the

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drug problem,” said the committee chair, New Jersey’s William Hughes. “These tragedies point to an unfortunate fact,” the Democrat said: “Our Nation is losing the war on drugs.” 31 In a speech that September, New Jersey Senator Bill Bradley, also a Democrat and a former pro-basketball player himself, said, “Due to the recent death of several well-known Americans, including Len Bias, drug abuse has come to the forefront of public concern.” 32 Heading into the midterm elections that fall, the Reagan White House made drugs its main focus.33 The New York Times reported that the issue “recently moved to the top of the political agenda in Washington,” lending an “emotional charge to an election year that for the most part has been short on national issues and themes.” 34 Roger Ailes, a Republican television consultant and future Fox News CEO, said there’s “a growing feeling that you cannot be too tough on drug pushers.” 35 Like the 1984 law, the Anti-Drug Abuse Act of 1986 passed the House and Senate on a bipartisan basis. Reagan signed it.36 “The magnitude of today’s drug problem can be traced to past unwillingness to recognize and confront this problem,” the president said, in an October 27 White House ceremony. “And the vaccine that’s going to end the epidemic is a combination of tough laws—like the one we sign today—and a dramatic change in public attitude.” 37 With First Lady Nancy Reagan by his side, he recalled, “One young person asked her advice about what to do if offered drugs. And she came up with a bit of simple, yet profound, wisdom. She said, ‘Just say no.’ ” 38 Shortly after the law’s passage, politicians on both sides of the aisle acknowledged its hasty creation. “One of the unfortunate by-products of the television age is the short attention span of the American public,” Texas Democrat Jim Wright said. “We walk along fat, dumb and happy until a crisis grabs us by the throat. Once it is off the front burner of nightly television coverage we go back to sleep.” 39 House Republican leader Robert Michel, of Illinois, said he feared his party had to act quickly, lest Democrats own the issue in an election year.40 The Anti-Drug Abuse Act would later be called “the single most punitive law ever passed during the War on Drugs.” 41 It ushered in a slew of mandatory minimums and the 100:1 disparity between crack- and powder-cocaine crimes. The crack/powder ratio treated a five-gram

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crack dealer the same as a five-hundred gram powder dealer. There was no scientific basis for the discrepancy that unduly impacted Black people. At a 2008 hearing, Biden reflected, “Each of the myths upon which we based the sentencing disparity has in some ways been dispelled or altered.” 42 The law’s designer-drug section didn’t fare much better, science-wise. As DOJ proposed, it banned drugs that are “substantially similar” to scheduled ones. And though Trott said the law’s test was backed by the scientific community, DEA witnesses testifying in court years later would admit that it wasn’t a scientific test.43 The designer-drug law’s official name was the Controlled Substance Analogue Enforcement Act of 1986.44 The Analogue Act, for short, defined an “analogue” as a substance intended for human consumption that satisfies the following requirements:

(i) the chemical structure of which is substantially similar to the chemical structure of a controlled substance in schedule I or II;



(ii) which has 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; or

(iii) with respect to a particular person, which such person represents or intends 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 Analogue Act’s wording raised a host of issues. Part of the confusion stemmed from the word “and.” More specifically, it stemmed from the word’s absence. An earlier draft of the law placed an “and” after the first subsection, which dealt with chemical structure.45 That would have clearly meant that prosecutors had to prove structural similarity, as well as either substantially similar effect or representation of substantially similar effect. Such a construction would have gone against the point of the law, in DOJ’s view; as Trott explained to lawmakers, the effects prong was there to make sure defendants didn’t walk free if the chemistry was too confusing for juries. But the law that Congress passed and Reagan signed didn’t have

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that “and.” It just had an “or” between the second and third prongs. That was more in line with the government’s proposal and rationale. Yet, the law’s ambiguous phrasing raised the possibility of ridiculous interpretation in the government’s favor. If federal prosecutors could choose any of the three subsections—structure, effect, or representation of effect—then convicting a defendant based on representation alone was on the table, regardless of actual structure or effect. Indeed, prosecutors later advanced that argument, securing analogue convictions for selling a candlewax and flour mixture, advertised as crack—before an appeals court reversed the convictions as “absurd.” 46 Despite DOJ’s hope behind the Analogue Act, and despite that lack of an “and,” courts around the country would generally come around to the idea that structural similarity, at least, was required. And as Trott anticipated, defendants would attack the law’s backbone: its substantial-similarity test. •

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Down in Pensacola in the early ’90s, Burton Ritchie’s collision with the Analogue Act was decades away. But the young and newly sober hustler was planting the seeds for what the government would call one of the world’s largest analogue operations.

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4

Creating a Monster

When nineteen-year-old Burton left the county jail in the summer of 1990, he had to attend Narcotics Anonymous meetings. The court required it.1 He saw a familiar face at his first meeting on the outside: Ben Galecki.2 Ben was a few years younger than Burton. They knew each other from around town but weren’t especially close. They’d been in the Boy Scouts at the same time, in different troops.3 Like Burton, Ben had a youthful run-in with the law, for stealing a car and joyriding with friends.4 He was also forced into meetings, after being caught drunk at school.5 He was depressed after his parents divorced.6 He was quieter than the more outgoing, in-your-face Burton, who was also a child of divorce.7 Unlike Burton, Ben didn’t consider himself an addict. So Narcotics Anonymous wasn’t the life-changing experience for him that it was for Burton, who got the NA symbol tattooed on the back of his head.8 But crossing paths with Burton, and staying in touch over the years, impacted Ben’s life in ways he couldn’t have imagined at the time. Per court order, Burton had to “work diligently at a lawful occupation.” 9 He never finished high school, so he got his GED and enrolled at Pensacola 19

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Junior College. From there, he moved on to the University of West Florida, also in Pensacola. Burton had an entrepreneurial awakening at UWF. He had always felt the need to optimize, a trait he attributes to late-discovered autism and a related efficiency obsession. Things clicked for him in the business and marketing courses.10 He kept an A-average, going on to pursue an eclectic assortment of ventures over the years—like a balloon store, yoga-mat and body-piercing supply distribution, and online poker.11 Burton was a gambler himself, getting seriously into poker in the 2000s, even playing in the game’s famed World Series tournament.12 A 2005 Rolling Stone story described Burton as “a Pensacola, Florida cardplayer,” though, more than anything, the story displayed his penchant for eccentric business moves; it recounted his attempt to put an online-gaming-company deal together between a young poker star named Dutch Boyd and “a consortium of venture capitalists, Kansas City mobsters, and NFL players.”13 Before he entered the poker world, Burton launched his most enduring business, one that clashed with the concept of sobriety: a head shop. The irony couldn’t be scripted. But he was a businessman, above all. He was well-suited, then, to the industry that High Times called the “all-American story of underground entrepreneurship.”14 Started on Pensacola Beach in 1992, Burton sold the usual hippie fare at the Psychedelic Shack: tie-dye T-shirts, posters, pipes, that sort of thing. He grew out his red hair into a long mane, looking the part of the headshop proprietor. He would have preferred to just sell the T-shirts and other things less-directly tied to drugs. But the profit was in the pipes, bongs, and products that helped people pass drug tests.15 And despite the laid-back atmosphere that incense and tie-dye might evoke, Burton ran the Shack militantly. He banned drug-use or even talk of drug-use.16 He reported his employees’ drug-use.17 He had three basic business rules: (1) don’t sell anything illegal; (2) don’t sell anything legal in an illegal manner; and (3) don’t fight city hall.18 The mantra let Burton have an open relationship with law enforcement. An officer he knew from childhood, Doyle Gresham, would borrow bongs from the Shack for antidrug presentations.19 As for the business clashing with sobriety, Burton had the OK from his sponsor, who didn’t object so long as it didn’t make Burton want to use.20

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Figure 1. The Psychedelic Shack, North Ninth Avenue, Pensacola, Florida, 2022. Photo credit: Brandon Ellis.

As for his customers, who invariably filled the Shack’s pipes with drugs, Burton took a libertarian stance: people can do what they want with their bodies.21 Business didn’t boom immediately. To supplement sales, Burton followed the Grateful Dead on tour. He drove across the country with a small crew, camping out and selling the same goods he sold at the Shack, but in the makeshift village parking lots of Dead shows known as Shakedown Street. Yet even in that drug-soaked scene, Burton kept the same no-drugs rule for his road crew that he enforced at the Shack. Selling paraphernalia was enough of a gray area, with each state and local authority wielding its own enforcement regime. Crossing the line into clearly illegal territory was another matter.22 Touring let Burton make some extra money and, when his self-imposed work schedule allowed, see some Dead shows. The band was in its final days. Front man Jerry Garcia died in 1995 at a California drug-treatment

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center.23 Burton threw a memorial bash for Jerry at the Shack, drawing more attention to the business that a Pensacola paper would later call “the premiere spot for alternative lifestyle needs.” 24 Another mid-’90s phenomenon that boosted head-shop sales was herbal ecstasy, the latest “legal-high” craze. It contained the stimulant ephedrine.25 Shops like the Shack sold it.26 That changed with the death of a New York college student on spring break with his frat brothers in 1996. They bought the product from a Panama City, Florida, head shop called Alice’s White Rabbit.27 Florida became the first state to ban it.28 Meanwhile, an academic chemist’s research would lead to one of the next legal-high crazes, with a substance whose ingestion the chemist compared to a game of Russian roulette. •

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John William Huffman earned a chemistry PhD from Harvard in 1957. He went on to do research and teach at Clemson in South Carolina.29 His specialty was synthesizing cannabinoids, the compounds that bind to the body’s cannabinoid receptors.30 It’s through these receptors that people get high when they smoke cannabis; the plant’s main psychoactive component, THC, binds to them.31 Synthetic cannabinoids can bind to the receptors more fully, producing a more intense high. 32 Academics and pharmaceutical companies have researched the compounds for decades, given their therapeutic potential.33 Funded by the National Institute on Drug Abuse, Huffman synthesized a series of cannabinoids in the 1980s and ’90s. He produced hundreds, identified by his initials, JWH. He’d become best known for JWH-018.34 Before he died in 2022, Huffman’s decade of retirement was marked by pestering from law enforcement, the military, concerned parents, and journalists.35 A German company in 2008 found JWH-018 in a product called Spice that was marketed as “herbal incense.” 36 US authorities seized the compound that same year.37 Though it was sold as incense, its buyers, who skewed young and male, didn’t light it for the smell.38 “I thought it was sort of hilarious at the time,” Huffman recalled to the Washington Post, of learning that people were smoking JWH-018.39 Apparently, underground chemists read the scientific

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23

literature on his creation, which wasn’t scheduled.40 “We had no idea that anyone would be stupid enough to use it,” Huffman told the Financial Times. “If you want to get high, marijuana is easily available,” he pointed out.41 He said smoking synthetic cannabinoids is like “playing Russian roulette.” 42 So why would people opt for synthetics instead of the natural plant? Of course, nearly any product will find a customer, especially one intent on psychic exploration. Roulette players abound. On a practical level, one benefit was that people could smoke spice and still pass drug tests.43 Thus, prohibition created a synthetic opening in the market.44 As one sciencejournal article put it, “People use Spice because it cannot be detected with standard urine drug testing, it is perceived as safe and legal, is affordable, and promises a ‘high’ similar to or stronger than cannabis.” 45 The high has certainly been stronger for some people who’ve used the drug that’s been misleadingly called “fake weed” or “synthetic marijuana.” 46 Spice’s psychosis-inducing potential earned its own disorder: “spiceophrenia.” 47 To be sure, not all experiences reach that level. Reports published by the nonprofit drug-information group Erowid range from the mundane to the fearful, as illustrated by ones titled Nearly Identical to MJ But Longer Lasting and Hellish Alternative Reality.48 A 2009 article in Erowid’s newsletter summed up the spice story as “part sci-fi, part Prohibition-style bootlegging, and part crass commercial venture.” 49 Among the head-shop runners to capitalize on that venture was Pensacola’s Burton Ritchie. •

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In the late ’90s, Ben Galecki worked in a tattoo shop during the day and a grocery store at night. Burton ran into him and said he needed piercers at the Psychedelic Shack. They set out to make the Shack the top piercing spot, focusing on quality and cleanliness.50 Ben, who was interested in technical challenges, wrote the manual they used to ensure sanitary standards.51 The Shack went on to receive high marks in local rankings, including a “Best of the Coast” award, which said the business offered “quality, safe piercing and tattoos from trained professionals.” 52 Ben first worked there until 2001, when he moved to Gainesville to attend the University of Florida. It’s a big football and party school, but he

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was attracted to its engineering program. He didn’t graduate. He felt out of place and depressed. Heading into what would have been his senior year, he moved to his mom’s place in Memphis, where she was taking care of his brother’s kids while his brother went through a divorce. Ben helped with bills and the kids’ schoolwork, staying there a year before moving back to Pensacola to work at the Shack again.53 He worked there another year, then took an IT job in Pensacola that he lost in 2009, in the wake of the 2007–08 financial crisis. He went back to school for software engineering at UWF, where Burton got his degree.54 The financial crisis impacted Burton too. He had built up the Shack over the years, expanding to two stores. But he ran high debts, and was invested in real estate when the market crashed. He needed something big to help turn things around.55 As luck would have it, the drug market was welcoming a profitable new product: spice. Burton started selling it at the Shack. With military bases nearby, among his customers were service members who had to pass drug tests.56 Instead of shutting down, Burton embraced the all-American head-shop ethos and expanded, opening a third location, thanks in part to the latest legal-high craze.57 Thanks to the Analogue Act, however, the “legal” aspect was up for debate. •

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By the time spice hit the United States, the Analogue Act had been tested in a series of weird cases. Defendants tried to harness the zeal deployed by Judge Babcock from the Forbes case in early ’90s Colorado, agitating against arbitrary enforcement and a failure to notify people of what’s illegal. Results were mixed. One such analogue case came to Judge Robert Sweet. He sat in the Southern District of New York, in Manhattan. Appointed by Jimmy Carter in the 1970s, Sweet made headlines for endorsing drug legalization.58 In a 1989 speech at the Cosmopolitan Club, he called the drug war “bankrupt.” He thought drugs should be taxed like alcohol. “Even as alcohol dulls the suppressor and enhances one’s view of oneself, cocaine gives a

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sense of exhilaration, heroin a glow, a warmth, and marijuana a sense of relaxation and ease. What then, is wrong?” the judge wondered.59 The analogue indictment before Judge Sweet in the early 2000s charged two men with distributing 1,4-butanediol, a substance long-sold as an industrial solvent. It was in a product called Rejoov, sold for bodybuilders to rejuvenate their muscles. Federal prosecutors alleged the chemical was an analogue of gamma-hydroxybutyric acid, the so-called date-rape drug known by its initials, GHB. The defendants, Todd Kelly Roberts and Michael Toback, asked Judge Sweet to dismiss the charges on vagueness grounds. After a hearing featuring two academic defense experts and a DEA expert, he did.60 Like Judge Babcock in Colorado a decade earlier, Judge Sweet pointed to the lack of expert consensus. “It is readily apparent from the June 17, 2002 hearing that there is no scientific consensus whether 1,4-butanediol has a chemical structure substantially similar to GHB,” the judge wrote in his September 2002 opinion, dismissing the indictment. He deemed the defense experts “both credible and qualified academics with extensive credentials in organic chemistry.” He noted their observation that the substances at issue “would be classified in different parts of an organic chemistry book, which is organized by functional group, and that a student who stated on a college exam that GHB and 1,4-butanediol were similar in chemical structure would indeed fail such an exam.” 61 Judge Sweet also raised due-process concerns about the Analogue Act. It provides “neither adequate notice nor the requisite safeguards against arbitrary enforcement that are required of the Constitution,” he wrote. “The lack of scientific consensus as to the definition of an analogue and the Government’s own contradictory positions on the subject demonstrate that no ordinary person could have fair warning that GHB and 1,4-butanediol are structurally similar.” 62 The judge’s ruling was short-lived. He was reversed by the Second Circuit, the federal appeals court with jurisdiction over Manhattan. Sweet was too tough on the government, the Second Circuit said in a 2004 opinion. Bill Clinton appointee Guido Calabresi wrote for the appellate panel that it was unnecessary to “call for the fine distinctions drawn by the experts.” The Analogue Act, the panel concluded, “gives the public clear

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enough warning that 1,4-butanediol qualifies as a controlled substance analogue and sufficiently limits prosecutorial and judicial discretion in its enforcement.” 63 The Second Circuit sent the case back to Judge Sweet. The defendants pleaded guilty. He gave them time served.64 A neighboring appeals court, however, cited the Manhattan judge’s ruling in a dispute that showcased the Analogue Act’s knack for absurdity. The Philadelphia-based Third Circuit sided with defendants who sold a mixture of candlewax and flour, advertised as crack. Richard “Bird” Hodge and Akil Greig distributed the blend in the US Virgin Islands, which fell under the Third Circuit’s jurisdiction along with New Jersey, Pennsylvania, and Delaware.65 Federal prosecutors pushed for a disjunctive reading of the Analogue Act, like they did when Congress contemplated DOJ’s proposed law in the mid-’80s. That is, the government argued it only had to prove one of the act’s three prongs: Structure, effect, or representation of effect. Proving the third prong was enough, prosecutors argued.66 Calling the law ambiguous, the Third Circuit resolved that ambiguity in the defendants’ favor. The government’s reading ran counter to the law’s purpose, the appeals court said in a ruling by Clinton appointee Thomas Ambro. He cited a House of Representatives report on the Analogue Act, which said structural similarity was needed “to avoid accidentally criminalizing innocuous substances, such as coffee.” The Third Circuit also cited Judge Sweet, whose review of the act’s legislative history found that it wasn’t meant for counterfeiters. Reversing the convictions, the court said treating candlewax and flour like a controlled substance was “absurd.” 67 So people accused of dealing household items might stand a chance at beating analogue charges. But selling things that seemed more like drugs meant rolling the dice, at best. As ever, the fate of the accused depended on the judges they drew, both at the trial and appellate level. •

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Burton and Ben wouldn’t have to worry about any of that just yet. But they were building the empire that would get them there.

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5

Controlling the Spice

The spice industry thrived on half-truths. The product was sold openly in stores. It was also sold with lies. Not that anyone bought the lies, really. It was a giant wink. Take the ever-present label on spice packets: “not for human consumption.” According to the Obama White House’s Office of National Drug Control Policy, dealers used those words to evade Food and Drug Administration oversight.1 Plus, prosecutors in analogue cases had to prove that defendants intended their products for human consumption. In theory, the legalese provided an out for sellers. As with any big business, it was about avoiding regulation and liability. In reality, no one was fooled— not wholesalers, not retailers, not consumers, and not the government. If anything, the not-for-human-consumption label proved the opposite. Industry terms for the product like “herbal incense” and “potpourri” were likewise farcical. If anyone wanted to set a fragrant mood, they could pay less for actual incense or potpourri. People could buy incense for less in the same head shops that sold spice. The supply side was murky too. The crucial ingredient in spice was synthetic cannabinoids, the part that got people high. Frequently, those chemicals came from China, packed by the kilo.2 Overseas shippers mislabeled 27

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packages so they wouldn’t be held up by Customs.3 US producers obtained the chemicals directly from overseas or secondhand through domestic connections, or, as Burton and Ben’s company would do, both.4 They dissolved the cannabinoids in acetone or some other solvent, so they could be mixed into or sprayed onto plant material. They added flavoring, like one might for soda or candy—vanilla, cherry, blueberry, and so on. They called the flavoring “fragrance.” To call something a flavor suggests it’s being consumed, which everyone knew but couldn’t admit.5 Like other industries, synthetic businesses adapted to government regulations. That meant shifting to new synthetic cannabinoids as older ones were banned. The DEA scheduled them for the first time in March 2011. The agency used its emergency powers from the 1984 law to temporarily ban five compounds, including Clemson chemist Huffman’s JWH-018. The DEA’s scheduling notice and then the order itself were both published in the Federal Register.6 That’s the government’s daily, public compilation of agency rules, notices, and proposals. Perhaps not a well-known resource to the average citizen, checking the Federal Register became an important part of life for sellers seeking to keep up with the law. “The emergence of these five synthetic cannabinoids represents a recent phenomenon in the U.S. designer drug market,” the DEA said in its order, referring to JWH-018 and other compounds. “Smoking these synthetic cannabinoids for the purpose of achieving intoxication and experiencing psychoactive effects has been identified as a reason for emergency room visits and calls to poison control centers.” 7 Spice sellers did a version of quality control as well. They sent samples of their chemicals for private lab testing. That let them ensure that they weren’t handling scheduled substances and, relatedly, that they got what they paid for. The lab checked the samples against federal and state lists of controlled substances, producing reports verifying that they weren’t scheduled. Wholesalers sent the reports to their retailer customers, giving the head shops proof they weren’t handling scheduled substances either.8 That testing regime harbored another industry half-truth, as the government saw it. Generally, wholesalers sent their retailer customers “does not contain” reports. As the name suggests, those reports listed scheduled chemicals that the products didn’t contain. Companies usually kept the “does contain” reports, so shops might not know what they were selling,

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and purchasers of gram-quantity packets might not know what they were buying—not that it stopped anyone from distributing or consuming the products labeled “not for human consumption.” Spice dealers said they used that dual-report system for proprietary reasons, to protect their recipes in a competitive industry where knockoffs proliferated and chemicals changed frequently due to government bans.9 Law enforcement saw it as another means of deception in a deceptive industry—and proof that dealers knew they were in the wrong.10 Complicating that deception narrative was that synthetic sellers didn’t all work out of back alleys. They had websites, storefronts, and other hallmarks of “legitimate” businesses. Industry players could be found at trade shows, like the CHAMPS shows in Las Vegas and Atlantic City, touted as “the premier counterculture B2B expo since 1999.”11 They formed trade associations, like the Coalition for Cognitive Liberty, which a federal appeals court later described as a “political action committee for the synthetic marihuana industry.”12 The coalition’s executive director was Daniel Francis, who that same court noted had a “personal penchant for cannabinoids.”13 Francis launched the group with spice dealers Tommy Malone Jr. and Drew Green, who met through Alcoholics Anonymous and would later be charged along with Francis and others in a Louisiana conspiracy related to the spice brand Mr. Miyagi.14 The coalition raked in five-figure monthly payments from members, which, for a time, included Burton and Ben, who counted Malone and Green among their stateside cannabinoid suppliers.15 The monthly dues were pocket change for dealers in the heyday of spice. But while coalition lawyers advised on the Analogue Act, even the best advice was speculative, due to the law’s subjective “substantial similarity” standard. The coalition’s director, Francis, who had worked in health care, knew they could make big money in spice. But he predicted they’d have limited time to do so. The goal was to buy time—to create a diversion and shape the narrative for lawmakers and the media.16 He brought that mischievous spirit to a 20/20 interview that aired in 2011, after the DEA issued its first synthetic-cannabinoid ban. In the 20/20 segment, Francis looked the part of a nondescript lobbyist, wearing a suit and strolling confidently against the backdrop of the US Capitol, alongside ABC’s chief investigative correspondent Brian Ross.17 Francis was speaking on behalf of the

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Retail Compliance Association, an offshoot of the coalition that lobbied from the retailers’ perspective as opposed to the wholesalers’. “A ban is very dangerous,” Francis told Ross. “Why is a ban dangerous?” Ross asked. “Because it sends it underground,” Francis replied. “And I’d like to ask the government, what is wrong with euphoria and who gave them the right to regulate it?” Ross pushed the spice lobbyist on the absurdity of the not-for-humanconsumption label. “We’re compliant with the rules of the FDA,” Francis explained. “So that’s a dodge,” Ross countered. “No, not at all,” Francis insisted. “It’s a fact.” “Mr. Francis,” the interviewer replied, incredulously. “You can’t sit here with a straight face and say ‘not for human consumption’ is anything but a dodge.” “Yes I can,” Francis replied with a straight face.18 So where did the euphoria come from if not by ingesting the product? Francis, who, perhaps unknown to his interviewer, was dabbling in drugs himself that day, maintained it could come from being around it. He nonetheless described the feeling in terms of consumption, saying that spice is like “when you bite into a peanut butter and jelly sandwich and you have that sensation of, ‘Man that’s good.’ ”19 The government continued to impose bans. •

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Spice sold well at the Psychedelic Shack in the late 2000s. So well that Burton had trouble keeping a steady supply. He wanted to start making it himself and distributing it to other shops. He wanted Ben to join him in the enterprise.20 Ben was back in school for software engineering at UWF in Pensacola. He’d been there a semester when Burton approached him with the idea for Zencense—or, “Zencense Incenseworks LLC,” as it would officially be registered with the State of Florida.21 They aimed to set themselves apart with the same professionalism and service they brought to piercings at the Shack.22

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Yet, Ben was hesitant at first. He had stopped working at the Shack before Burton sold spice there. He was in engineering to take on technical challenges. He didn’t think a head-shop type of job would be rewarding. The whole scene just wasn’t his thing. But after running the numbers, he realized he could make decent money in a year and help pay off student debt.23 The engineering mindset of taking bigger problems and breaking them into smaller ones served Ben well at Zencense.24 He was chief of operations and Burton’s right-hand man.25 In practice, he was a mix of IT, sales manager, and procurement. He set up an automated system for salespeople to track calls and send orders to the shipping department.26 Burton’s experience running the Shack, meanwhile, taught him that customer service can set a company apart. Applying that combined mentality to Zencense, they sought to stand out in an industry where competitors didn’t pay that same attention to detail.27 Ben was also responsible for making the spice. He learned from watching Burton’s Shack suppliers make it. It wasn’t complicated. Just a matter of mixing the ingredients and making sure everything is done evenly.28 It was better to mix the cannabinoids into the leaf than to spray them on, which could lead to uneven batches, Ben learned.29 For testing, Zencense used the AIBiotech lab in Virginia. After obtaining their cannabinoid kilos, whether from foreign or domestic sources, they’d send samples to the lab while keeping the rest of the shipment quarantined in a safe. Once they received reports showing the shipments didn’t contain scheduled chemicals, they got rolling on production. They’d lab-test the product again after it was finished, to make sure it wasn’t contaminated during the process.30 They usually held onto the “does contain” reports, wanting to keep their ingredients to themselves. One exception came in the case of a special blend they made for a Texas head-shop chain called the Gas Pipe. For that custom Headhunter blend, the shop received “does contain” reports showing that it contained the unscheduled cannabinoid XLR-11 (one of the successor compounds to JWH-018 after it was scheduled), as well as “does not contain” reports showing that it wasn’t scheduled under federal or state law.31 Brand recognition, of course, was everything. It had to be when the product didn’t say what was in it. Spice was originally a brand name.

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Along with K2, it was one of the early popular ones. While new brands emerged, spice and K2 became generic terms for the product, like how people might call soda “coke” even if it’s not Coca-Cola (a product whose formula has long been kept secret, so consumers drinking its “natural flavors” don’t exactly know what they’re getting there either).32 Some academics have speculated that the Spice brand name was inspired by the same-named substance in Frank Herbert’s 1965 science-fiction novel Dune, which David Lynch adapted to film in 1984 and hit the screen again in the 2020s.33 The fictional substance plays an important cultural and commercial role in Herbert’s interplanetary epic. The phrases “he who controls the spice controls the universe” and “the spice must flow” are well known to Dune’s dedicated followers. Comic-book and sci-fi enthusiasts at heart, Burton and Ben put snappy names on their spice that served as homages to those worlds or were similarly eye-catching. One of their best-selling products was Bizarro, named for Superman’s twisted doppelgänger who was hatched in a “bizarre science experiment gone horribly wrong.” 34 Burton was fond of the antihero from the Superman anthology he read as a child, when his grandmother in Alabama took him to the library.35 “Sometimes misguided, sometimes genuinely malevolent, and even sometimes a true hero himself, Bizarro is nevertheless a force to be reckoned with,” according to the character’s DC Comics biography.36 As was true for other brands, Bizarro spice came in different flavors—or “fragrances,” for those abiding the “incense” ruse—like Bizarro Cherry. Orgazmo, Neutronium, and Sonic Zero were also among Zencense’s offerings.37 The company ran a tight ship to crank out those fun-sounding products. Burton and Ben were sticklers for industry terms like “incense” and “potpourri.” 38 Burton had experience in that respect from running the Shack, where he’d kick customers out if they hinted they’d use the shop’s pipes to smoke illegal drugs. Likewise, Zencense had strict rules for its salespeople, who made cold calls to prospective head-shop customers.39 If a client or potential client said anything about smoking the product, salespeople were supposed to end the call immediately.40 As bosses, Burton and Ben were different but complementary. They were both serious and intense, but Ben, who owned 20 percent of the

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company to Burton’s 80 percent, was more low-key, while Burton wouldn’t hesitate to blow up in an employee’s face. Ben tried to keep Burton sane. When employees talked to Burton, they learned he didn’t want to hear anything other than an answer to the question he asked.41 Burton attributed his directness to autism. Whatever his motivation, Burton’s blunt approach, coupled with Ben’s calmer savvy, helped grow Zencense as the spice market took off. •

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And while the business and the broader industry developed, an inquisitive DEA chemist took an early interest in these new “incense” products that were popping up. But some of his colleagues found him a bit too inquisitive—to the detriment of law enforcement—and he was on his way to becoming an improbable witness for the defense in analogue cases.

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6

Team Player

Arthur Berrier earned a PhD in organic chemistry from the University of Southern California in 1982. He worked in private industry for chemical companies before joining the DEA in 2006. There, he was a senior research chemist for the agency’s Office of Forensic Sciences, in its Special Testing and Research Laboratory, outside Washington, DC, in Dulles, Virginia.1 Berrier was Forensic Sciences’ expert when it came to the novel substances that were increasingly concerning law enforcement. That included synthetic cannabinoids, the chemicals inside of spice.2 Berrier convinced his boss to create a new group to tackle the phenomenon: Emerging Trends.3 When he gave a presentation for a government workshop on the issue, Berrier was introduced as “the visionary behind the Emerging Trends lab.” 4 Despite his initiative, Berrier became an impediment to analogue prosecutions. In theory, the government could allege that anything was substantially similar to a scheduled drug. In reality, US Attorneys’ Offices looked to the DEA for guidance, relying on the agency’s promise of expert testimony at trial that a given substance qualified as an analogue. So how did the DEA determine what qualified? Berrier played a crucial part in that process, until he was shut out of it. Understanding his role is a bit of a bureaucratic slog, but it’s important to the story. 34

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Analogue reviews worked like this. DEA policy gave another part of the agency, called Diversion Control, the ultimate authority to say whether a substance could be an analogue.5 If Diversion Control chemists thought a substance qualified, then they’d write a report, called a monograph, and send it to Forensic Sciences for review. Forensic Sciences headquarters would assign the review to the special lab where Berrier worked, and, as the lab’s expert, he’d conduct the review on its behalf.6 His lab would then report back to headquarters, which would report back to Diversion Control. There was also an Analogue Committee, whose representatives from Diversion Control, Forensic Sciences, and other DEA components could weigh in.7 Whatever happened during the process, it was up to Diversion Control, in the end, whether to deem a substance an analogue. If so, they’d upload the monograph to an internal DEA site that wasn’t publicly accessible.8 Reviewing Diversion Control’s monographs was the part of Berrier’s job that he hated the most. He thought their work was sloppy, laughable even, and that they’d support prosecutions at all costs. As he saw it, Diversion Control’s mindset elicited the saying: If all you have is a hammer, then everything looks like a nail.9 Diversion Control, for its part, thought Berrier was too picky. Not even everyone in Forensic Sciences agreed with all of Berrier’s opinions. But he was their expert, and they deferred to him; whatever he thought became the position of Forensic Sciences writ large.10 The Analogue Act made Berrier’s task more stressful. It doesn’t define “substantially similar.” He surveyed the scientific literature and didn’t find anything that answered the question to his satisfaction. That made it more of a guessing game, or a gut feeling, than a scientific endeavor.11 His struggle evoked that of DEA chemist Roger Ely, who testified for the defense in the Forbes case in early ’90s Colorado. As Ely put it back then, referring to the substantial-similarity test, “There is no guideline.” (Ely was from Forensic Sciences. The chemist who testified for the government in Forbes, Frank Sapienza, was from Diversion Control.)12 Still, Berrier tried to agree with Diversion Control’s conclusions when he felt he could. And he usually did.13 But when he didn’t, it wasn’t welcome. Things came to a head in 2011, when fallout from monograph reviews sparked tension between the two DEA groups. On April 4, Diversion

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Control sent Forensic Sciences a monograph, making the case for an unscheduled substance—MDPV—to be treated as an analogue.14 MDPV was a synthetic cathinone. That’s the chemical found in “bath salts,” a popular designer drug at the same time as spice. Like spice, which was sold as “incense” and “potpourri,” bath salts were sold in an openly absurd manner, as a product that could enhance the bathing experience. As with spice, officials saw something more sinister at play. “Bath salts are one of the latest designer drugs to reach our shores, and they have proven to be a public health and safety menace with serious, and sometimes deadly, consequences,” Preet Bharara, US Attorney for the Southern District of New York, said in announcing arrests that year.15 In her email sending the MDPV monograph to Forensic Sciences, Diversion Control’s Liqun Wong noted that “there has been increasing amount of inquiries from law enforcement and prosecution on the analogue status of MDPV. . . . Finalization of the monograph, at the earliest possible time,” she wrote, “will ensure there is uniform and consistent position from DEA.” Forensic Sciences forwarded the request to its special lab, where Berrier was tasked with review.16 Berrier disagreed with Diversion Control on MDPV. He would have preferred to agree. He understood that law enforcement was under pressure to fight the bath-salts scourge. But he didn’t think Diversion Control’s reasoning satisfied the Analogue Act. He wrote a report explaining his view that MDPV wasn’t substantially similar to MDEA, the scheduled substance Diversion Control compared it to.17 He asked one of his Forensic Sciences colleagues, John Casale, what he thought. Casale agreed with Berrier, memorializing his view in an email on April 5, explaining that MDPV and MDEA were “quite different.”18 Their lab forwarded the dissent to Forensic Sciences headquarters, which, in turn, told Diversion Control.19 It didn’t go over well. Diversion Control wanted to support MDPV prosecutions—and quickly. Wong told Forensic Sciences in an April 12 email that she wanted the DEA to present a “uniform position” to a New York prosecutor handling a bath-salts case. An email two days later from one of Wong’s Diversion Control colleagues, Terrence Boos, further captured the dynamic between the DEA groups—Diversion Control as the law-enforcement supporters, and Forensic Sciences as the sticklers

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standing in the way. The email’s subject line was Analogue Committee— MDPV, and it was apparently addressed to members or attendees of the committee at the time, including members of both Diversion Control and Forensic Sciences. “Input from Office of Forensic Sciences regarding chemical structure differences that a defense attorney may use to dissuade from the opinion of substantial similarity are extremely helpful in developing the practical approaches for the government prosecution of the MDPV, and similar emergent drug cases,” Boos wrote. He added that Diversion Control’s MDPV monograph would be posted on the agency’s internal site and shared with New York prosecutors.20 But one of Forensic Sciences headquarters’ recipients on the email, chief of laboratory operations Lance Kvetko, replied to reiterate his side’s view that MDPV and MDEA weren’t substantially similar in structure. Kvetko raised the concern that “prosecutors will be left with weighing the implications and potential fallout of DEA chemists’ split opinion on this matter.” 21 It was around that time that members of Diversion Control and Forensic Sciences met, attempting to find common ground on their analogue approaches.22 They met at Forensic Sciences’ special lab, where Berrier worked.23 He was among those in attendance, as were his supervisor, Thomas Duncan, and the head of his lab, Jeffrey Comparin. Boos and Diversion Control’s lead MDPV reviewer, Thomas DiBerardino, were among the attendees for the other side.24 DiBerardino had testified for the government in the 2002 Roberts case, in which the academic defense experts said they’d fail a student who gave his substantial-similarity answer on an exam.25 Berrier dreaded the idea of going to the meeting, where he’d have to talk to the people who stressed him out and whose work he didn’t respect. He didn’t want to review monographs in the first place. It was the part of his job he hated the most.26 Berrier would hate it more after sitting through the meeting, which felt to him like more of an interrogation. He recalled DiBerardino telling him to be a “team player.” 27 Members of the two DEA groups testified differently about their memories of the meeting years later, in a Texas analogue case against the Gas Pipe head-shop chain (one of Burton and Ben’s clients). DiBerardino said he didn’t remember telling Berrier that,28 nor did Boos,29 but Comparin and Duncan backed their employee’s recollection,

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at least to the extent that they remembered someone in Diversion Control saying something along those lines.30 Forensic Sciences’ David Rees, who was stationed at headquarters and served as a go-between for Berrier’s lab and Diversion Control, said he didn’t “remember that comment, per se,” but he remembered Diversion Control “being a little frustrated with Dr. Berrier.” 31 At any rate, there was a clear philosophical difference between the two groups. Berrier felt pressured to agree with all of Diversion Control’s analogue opinions, science be damned. Diversion Control forged ahead on MDPV. Or so they thought. DiBerardino went to New York to brief the prosecutor there on why it qualified as an analogue. But he was ambushed by Forensic Sciences chemists, who are stationed in labs across the country and apparently received word of the disagreement in DC.32 DiBerardino expected a small meeting with the New York prosecutor and agents. But some ten or fifteen Forensic Sciences chemists showed up, to reiterate their view that MDPV wasn’t an analogue. “The briefing was not successful as it became an open forum dominated by several persons having a single opinion,” DiBerardino wrote in his April 28, 2011, trip report. He was “prepared to present all sides of the issue whereas the chemists presented only one side resulting in a lack of confidence for a successful conviction,” he wrote.33 The Diversion Control/Forensic Sciences rift didn’t stop there. New synthetic substances kept popping up when older ones were scheduled. That meant more Diversion Control monographs sent over to Forensic Sciences, which meant more reviews for Berrier. He still found ways to approve their conclusions when he felt he could. But his relatively few disagreements kept bothering the other side. While Forensic Sciences didn’t think Diversion Control took the science seriously, Diversion Control didn’t think Forensic Sciences took the public-health threat seriously. “Let them advise, let us consider it, then let us take it or leave it,” DiBerardino wrote to his Diversion Control colleagues. “Some within DEA may believe that a minimal challenge is a bad thing,” he wrote. “I am glad it is not us.” 34 It’s unclear to what extent Diversion Control kept considering Forensic Sciences’ opinion. In the spring of 2012, Berrier conducted the last formal monograph review of his DEA career. On March 23, 2012, Diversion Control’s Wong emailed Rees at Forensic Sciences headquarters, asking

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for his side to review three new substances, including the synthetic cannabinoid UR-144, one of the latest spice ingredients. Diversion Control thought it was an analogue of JWH-018, John W. Huffman’s creation that was scheduled the year before.35 Berrier agreed with Diversion Control on two of the three substances. But he disagreed on UR-144. When he reviewed that monograph, he saw the same shoddy approach. The head of Berrier’s lab, Comparin, wrote to Forensic Sciences headquarters, telling them of Berrier’s conclusions on all three substances.36 Headquarters wasn’t eager to share the disagreement with Diversion Control—at least not in writing. Forensic Sciences’ head of lab operations Kvetko wrote to Forensic Sciences’ lab program manager Rees, asking Rees to tell him what Diversion Control says, “before we write any outgoing to that office.” Rees called Wong at Diversion Control and left a message. She replied in an email that she got his message and would call him back. Rees later testified that he spoke to Wong and told her about Forensic Sciences’ disagreement on UR-144. 37 But Forensic Sciences didn’t communicate that disagreement to Diversion Control in writing. It did, however, send Diversion Control Berrier’s agreement on the other two substances. Diversion Control deemed UR-144 an analogue and posted the monograph to the internal site.38 Thus, with Diversion Control being the ultimate arbiter within the DEA of what could be an analogue, UR-144 became one in the agency’s view. With the next new cannabinoid, XLR-11, Forensic Sciences wasn’t asked to conduct a formal review.39 Had Berrier been asked, he would have said that it wasn’t an analogue of JWH-018 either. That’s because XLR-11’s structure is even less similar to JWH-018’s. So if someone thought UR-144 wasn’t an analogue of JWH-018, then they’d think the same of XLR-11.40 If the DEA took Berrier’s view, then XLR-11 and UR-144 were legal. But Diversion Control deemed the latest substance an analogue too. Berrier would keep weighing in on new chemicals—unofficially—but the DEA didn’t want him writing anything down.41 If he kept putting dissents in writing, that would have created more of a paper trail that analogue defendants could exploit.

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Secrecy was key to the process. When Diversion Control deemed UR-144 and XLR-11 analogues, there was no Federal Register posting or any other public listing like there was for scheduled drugs such as JWH018. The government didn’t want to give the “bad guys” a road map, even if it meant not telling the public as soon as possible which substances it thought were at least as dangerous as scheduled ones.42

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7

Ryan Goes West

Heading into 2012, Zencense was growing and looking to turn evergreater profits.1 An impediment to further growth was location. It took too long for the spice to dry in the Pensacola humidity. An arid climate could speed things up.2 Burton’s gambler mind trained on the desert locale of Las Vegas. They just needed someone to run the operation out West. Enter Ryan Eaton. He had recently graduated with a degree in psychology from Point University, a small, Christian liberal arts school in Georgia. A big, bearded, teddy-bear of a young man, with a solid work ethic and mounting debt, he started at Zencense in the winter of 2011–12, slapping stickers on spice bags for eight bucks an hour. He didn’t know Burton or Ben before they hired him, but he knew of the Psychedelic Shack as a countercultural institution, and he knew of Burton, who did TV commercials for the Shack, as a local persona.3 Ryan had experience with hard work and difficult people. He started in roofing and construction with his father at age twelve. That experience came in handy at Zencense, where Burton, especially, could be demanding. After a few months on the sticker assembly line, followed by a stint in shipping, Burton and Ben asked Ryan to work the Vegas warehouse.4 41

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It was good timing. Ryan had learned that he wasn’t accepted into the graduate psychology program he applied to at Auburn. He was up for a change in scenery. They’d pay him $600 a week and a few hundred extra a month to help pay student loans.5 Burton registered the business as an out-of-state corporation in Nevada.6 Ryan drove west in the company car: a white minivan with Florida plates, registered to Zencense.7 •

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Meanwhile, the synthetic-drug war intensified as calls to poison control increased. The Obama White House warned of a rising threat. “The large profits from sales, plus the fact that these chemicals can be easily synthesized to stay one step ahead of control, indicate there is no incentive to discontinue retail distribution of synthetic cannabinoid products under the current statutory and regulatory scheme,” the Office of National Drug Control Policy said in a February 2012 report.8 By the time of that report, the chemicals in spice had gone through several changes in response to government bans. From 2007–10, the most popular ingredient was JWH-018, which was temporarily outlawed under the 1984 law.9 “Young people are being harmed when they smoke these dangerous ‘fake pot’ products and wrongly equate the products’ ‘legal’ retail availability with being ‘safe,’ ” the DEA said in a 2011 press release, put out in connection with the ban. “Parents and community leaders look to us to help them protect their kids, and we have not let them down,” the release said.10 With JWH-018 scheduled, prosecutors could charge new substances as its analogue when they inevitably entered the market in response to the ban. One of those potential analogues was AM-2201, which was more potent than JWH-018 and became one of the next popular spice chemicals.11 That was until Congress banned it, too, in the Synthetic Drug Abuse Prevention Act of 2012. Obama signed it into law on July 9.12 The act permanently banned several spice compounds, including the temporarily scheduled JWH-018, as well as bath-salts compounds like MDPV, the synthetic cathinone that prompted internal DEA disagreement in 2011.13 Two of the next major compounds on the spice scene were UR-144 and XLR-11. As with prior chemicals, dealers around the country used them

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because they weren’t scheduled. There was no public posting of the DEA’s (internally contested) conclusion that they were analogues. The agency didn’t warn the public about the drugs that prosecutors would allege were at least as dangerous as scheduled ones. Officials were focused on the upcoming, nationwide synthetic-drug takedown, the first of its kind, in the summer of 2012: Operation Log Jam. •

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Ryan Eaton lived with random roommates at a house in Las Vegas. They had a pool in the backyard. The Vegas strip was a ten-minute drive away. A ten-minute drive in another direction took Ryan to the office: Zencense’s warehouse, at 5435 Desert Point Drive.14 He worked there alone, with cement mixers, drums of acetone, and XLR-11 shipped from China by way of Pensacola. To set up the warehouse, Ryan bought otherwise-mundane supplies from Home Depot, like two-by-fours and chicken wire for the drying tables, and cement mixers to blend the chemical into the plant material, which Ben sent Ryan in boxes of pre-measured bags.15 Zencense wired over $200,000 to China for XLR-11 from May through July of 2012. Ben sent Ryan kilos of the chemical after quarantining the shipments and receiving test results from AIBiotech, confirming it was what they ordered.16 Though he didn’t make much money and didn’t know the first thing about XLR-11, Ryan’s warehouse days had a Breaking Bad feel to them— the solitary pursuit of concocting chemical recipes while wearing a painter’s mask. Using a bag for each batch, Ryan put acetone, flavoring, and XLR-11 powder in a glass beaker with a magnet in it. He used a hot plate/ spinner machine that caused the magnet inside the beaker to spin, mixing the powder and flavoring into the acetone. He poured the mixture onto the plant material inside of the cement mixer. After mixing the plant material with the acetone, powder, and flavoring, Ryan spread the product onto the drying tables. The process took about an hour, hour-and-a-half from start to finish, when the product was dry. After it dried, Ryan stuffed the spice into garbage bags and shipped it back to Florida through FedEx.17 At Zencense headquarters in Pensacola, workers packed it into gramquantity bags for distribution to head shops nationwide.

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Ryan shipped hundreds of spice kilos back East. In just several weeks, Zencense made over a million dollars from the Vegas excursion.18 Nosy neighbors would end it all. •

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Apparel Logo workers at 5445 Desert Point Drive were suspicious of the big, burly, unshaven guy next door who said he was making potpourri.19 They thought he was growing weed.20 They called the police.21 The DEA got involved. Law enforcement started surveilling Ryan.22 In the evening of July 18, 2012, the week before the nationwide Log Jam raids, DEA Special Agent Dave Behar saw the Zencense van parked outside the warehouse. Behar observed a man he thought was about six foot two, three hundred pounds leave the building, enter the van, and drive off. The agent had a Vegas officer pull over the vehicle to identify the driver. It was Ryan.23 The next evening, another officer saw Ryan leave the warehouse with cardboard boxes, put them in the van, and drive them to FedEx. Agent Behar followed Ryan inside. He saw the boxes were addressed to Burton at Zencense’s address in Pensacola.24 The agent investigated the company. He learned that DEA colleagues around the country had been seizing Zencense products. A Houston raid that April of 2012 uncovered kilos of Bizarro Cherry spice. Agents in West Virginia that June also seized Bizarro Cherry, along with Sonic Zero Blueberry, Sonic Zero Cherry, Avalanche Vanilla, and Avalanche Pineapple. Behar got a search warrant for the Vegas warehouse ahead of the Log Jam raids.25 But before the government hit synthetic businesses, it hit the radio airwaves. Listeners heard straight from the DEA about the modern drug war. More specifically, they heard from agency scientists on the front lines of that war. •

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A late-June segment of NPR’s All Things Considered warned about the spooky phenomenon of Chinese chemists tinkering with molecules to stay

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one step ahead of US law enforcement. Perhaps it was the first time the show’s millions of listeners ever heard about designer drugs. Odds are, it was the first and only time they’d hear the voice of the DEA chemist the government presented to educate listeners: Arthur Berrier.26 “This is weekends on All Things Considered from NPR news. I’m Laura Sullivan, in for Guy Raz,” the host began, introducing the day’s cover story. A horror story, it seemed. It called to mind the “frozen addicts” incident from early ’80s California, when doctors were stumped by a bad syntheticdrug batch.27 Sullivan’s first guest, a Louisiana emergency room doctor, spoke about a twenty-four-year-old who came into the hospital hallucinating, seeing things on the wall, pulling out his eyebrows and lashes. The doctor couldn’t figure out what the kid was on. “It was an odd thing, because he had every different type of drug toxicity but nothing that we could pinpoint directly,” the doctor explained. He called in his colleagues. “It’s very rare to see five doctors in a room puzzled,” he said. One of the kid’s friends fessed up that they bought Vanilla Sky, a bath-salts blend apparently named for the 2001 film starring Tom Cruise, in which Cruise’s character loses his grip on reality.28 “That’s a scary, scary thing, and that’s when we knew this was going to be a problem,” the doctor said. The host explained it was part of “the emergence of synthetic drugs, made in labs, produced in vats, sold in gas stations, designed specifically to skirt the nation’s drug laws—often with deadly results.” These new drugs, Sullivan said, “show up in gas stations, in pipe shops, mom and pop stores, all over the internet, as plant food, incense, hookah cleaner, bath salts.” The key for drug seekers, she went on, is the phrase not for human consumption, which, she said, “is supposed to hint at the opposite.” 29 The host took listeners inside “a little-known lab in Northern Virginia,” where DEA scientists “are on the front lines of a new war. This is not like the drugs of the past forty years,” she said. It was Berrier’s lab. Sullivan asked if he ever thought about the chemists on the other side of the world making the drugs he investigates.30 “Yeah, all the time,” Berrier replied with a chuckle. “What do you think?” “They do a pretty good job at it,” he said. “They’re just doing different things.”

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Then Sullivan hit on law-enforcement challenges in prosecuting cases under the Analogue Act. “To try to bring criminal cases against suppliers, sellers, and users of what are essentially legal compounds,” she said, “the DEA and prosecutors have to reach way down into the annals of the nation’s drug laws.” As Berrier put it, “Basically, we’re playing whack-amole. They make one drug, or one compound, and we smack it down, and the next week, something else pops up.” The head of Berrier’s lab, Jeff Comparin, was also on the show. Asked how they’d keep up with this whack-a-mole game, he said, “Hire more guys like Arthur.” 31 What NPR listeners didn’t know was that deciding which drugs to call analogues was a matter of intense debate within the DEA, largely because of Berrier. The program aired not long after the chemist issued his UR-144 dissent, the last time the DEA formally asked for his opinion. But scientific disagreement wasn’t going to stop the government from tackling a public-health threat the best way it knew how: Criminal enforcement. Weeks after the radio segment aired, federal agents kicked that enforcement into high gear with Operation Log Jam.

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Summer Jam (Leaving Las Vegas)

By late July 2012, Ryan Eaton was bored and lonely in Vegas. Operation Log Jam was many things for him. But it wasn’t boring. Or lonely. He’d earn what Burton called a gun-in-the-face bonus.1 Ryan’s time out West to that point was a spice-themed Groundhog Day. Driving to the warehouse. Putting on a mask. Mixing the product. Drying it out. Packing it into garbage bags. Driving the bags to FedEx. Going “home” to his random roommates.2 As Ryan texted a friend at the time, he did “nothing but make itchy spice in a hot warehouse and float in my pool.” 3 Mix. Dry. Repeat. When he pulled into the warehouse parking lot on July 25, Ryan noticed a truck out of the corner of his eye pulling in behind him. Then he saw the flashing lights. Next thing he knew, he had a gun in his face. He was terrified.4 Armed with a search warrant, agents cuffed Ryan, put him in a government sedan, and drove him off the scene. They handcuffed him behind his back, with a single set of cuffs, which dug into the big guy. So on top of the emotional terror, it was physically painful. Ryan had dislocated both of his shoulders before—once as a drunk teenager falling into a ditch, and again 47

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falling off a pallet while working construction. Behind-the-back handcuffs aggravated those injuries.5 Agents asked Ryan where the booby traps were. There weren’t any. They set up a truck with a conveyor belt to haul evidence out of the warehouse (or, the “clandestine laboratory,” as the DEA called it in a report):6 Kilos of XLR-11; barrels of acetone; hundreds of pounds of plant material in boxes waiting to be turned into spice; and over a hundred pounds of spice already mixed with XLR-11.7 Eventually, agents gave Ryan a more-comfortable, double set of cuffs in the back, followed by a single-set in front that was even better. They asked Ryan for permission to search his house. He gave it. They didn’t find any spice there. They brought him to a holding center, took his belt and shoelaces, and put him in a cell. They asked for his phone. He let them have it. He didn’t think he had anything to hide and, by then, the only thing he cared about was not sleeping in that cell. It’d been hours since agents first rolled up on him at the warehouse. All he had to eat or drink since then was water. Agents gave him a candy bar while they processed paperwork. They returned his shoelaces and belt and dropped him back at the warehouse. They said they didn’t want him talking to Burton or Ben.8 Ryan was still shaking when the agents dropped him off. He had quit smoking a few days before. He bought a pack of Marlboro Reds at a convenience store and went to Walmart, bought a cheap prepaid phone, and called his father to fill him in. His father said Burton and Ben had been calling all day, worried. Ryan called Burton, who apologized profusely, a detail that stuck out to Ryan amid the terror of the day. He never heard Burton give anything approaching an apology before.9 Burton told him to take a paid vacation on the company card. Ryan rented a convertible, put the top down, and drove through the night. After a jaunt that included Park City, Utah—he had always wanted to visit—Ryan made his way back to Vegas, got his stuff, and went home to Pensacola.10 •

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Operation Log Jam quickly landed in the legend of historic DEA raids. The nationwide effort netted some one hundred arrests, hundreds of syntheticcannabinoid kilos, and millions of packets ready for distribution. And that’s

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just the drugs. It was a lucrative outing for the agency as well, raking in tens of millions of dollars in cash and assets.11 “This operation is the first nationwide, coordinated US law enforcement strike specifically targeting designer synthetic drugs,” DEA head Michele Leonhart announced at a press conference from headquarters in Arlington, Virginia, on July 26, 2012. “Sold in legitimate-looking packaging, these insidious substances are marketed directly to teenagers and young adults with benign and catchy titles like Spice, Blaze, Vanilla Sky, and incense,” she continued, naming, among others, the bath-salts product mentioned on the NPR segment by the Louisiana doctor. Leonhart said the feds “are sending a clear message to those who profit from the sale of these dangerous substances: you are nothing more than a drug trafficker and we will bring you to justice.”12 (She resigned a few years later, following a scandal stemming from agents in Colombia partying with cartel-paid prostitutes.)13 Nightly news segments spotlighted the operation, featuring arrests of local dealers and raids of head shops and production facilities, from Portland, Oregon, to West Palm Beach, Florida, and points in between.14 •

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When they heard from Ryan after the raid, Burton and Ben thought the DEA must be confused. They figured agents thought Zencense was using the recently scheduled AM-2201, not the unscheduled XLR-11. Their next move was one that dealers of a scheduled drug couldn’t have made. They reached out to the government. They agreed that, if the DEA told them to shut down, they would. They wouldn’t fight city hall.15 Instead, they called city hall, or something like it. Burton contacted Doyle Gresham, the Pensacola cop who borrowed bongs from the Shack for anti-drug presentations. Gresham wasn’t in narcotics anymore. But he put Burton in touch with a guy who very much was: DEA Special Agent Claude Cosey.16 Burton never heard of Cosey. But the veteran agent knew about the head-shop owner and didn’t much care for him.17 If it was up to Cosey, he would have shut Zencense down that day. But he didn’t have a prosecutor on board. No one in the Northern Florida US Attorney’s Office “had the

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balls” to use the Analogue Act, as the agent saw it.18 So Cosey had to play nice.19 Fortunately for him, Burton and Ben weren’t fighting city hall. Over the phone that night, Burton explained to Cosey the steps they took to comply with the law. With Burton’s eagerness for Cosey’s approval, and Cosey’s eagerness for Burton’s cooperation, their conversation didn’t sound like a cop/criminal standoff. The longer it went on, the more it sounded like a couple of old Alabama buddies shooting the breeze over a beer (if Burton drank).20 “Mr. Cosey, let me just cut right to the chase,” Burton said: “We probably spend close to ten thousand dollars a month using an outside chemicaltesting company that does do a full spectrographic analysis on every gram of anything that comes into our building. Okay. So I do know exactly what’s in our products, and that’s why I wanted to call you, because we don’t sell bath salts, we don’t sell AM-2201, we don’t sell any of those things that are banned. And I would be so glad to let you come in anytime, and if you guys have an issue, give me a call. Because what I don’t want to have happen is you guys come in, you know, arrest me—or my employees, even worse. . . .” 21 “Let me cut to the chase,” Cosey said. “What I would propose that you do, if you don’t mind, is just let me get one small sample of each of—you know, like, and I know that there’s, I don’t know what kinds, like, strawberry flavor, or stuff like that or whatever. But I know that it’s basically— am I being incorrect, is it basically the same thing, it’s just basically a little extra flavor to it or whatever so it’s a different flavor but it’s basically the same compound?” “We use the same scent-enhancer compound in every one of our products at this point, yes, sir,” Burton said, being careful not to admit the product was intended for human consumption. “But the raw ingredient inside of each one of those packages, is it pretty much the same?” Cosey asked. “It’s exactly the same,” Burton said. “Alright. If it would clear things up and help you feel better about this, and certainly put our mind at ease, what I propose that we do is let me meet with you whenever, I’m not in a hurry to do it, you know, but whenever, and if you would just let me get one of the samples of each of whatever your line is. Like, for instance, this is gonna sound stupid, but, you know, like, Coca-Cola, RC-Cola, Pepsi-Cola—”

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“No, I understand,” Burton assured the agent. They agreed to meet at Zencense in the morning. Until then, Cosey wanted to put Burton’s mind at ease. “Don’t lose a minute’s sleep over this,” the DEA agent told the dealer. “Okay, well I appreciate you saying that. I really do. It does help me feel a lot better.” “Look,” Cosey said, “Tell you like this: If you had anything to worry about, we wouldn’t be talking over the phone.” “Yes, sir,” Burton replied. “I’m pickin’ up what you’re puttin’ down.” Cosey said he’d have the DEA lab analyze the samples and tell Burton the results. “If it’s good to go, it’s good to go,” the agent said, adding that he’s “sure that it is.” Cosey said it sounded like Burton was “doing everything that you should do to make sure that you’re not selling anything that’s inadvertently a controlled substance.” He told Burton about an investigation he did into a guy selling synthetics out of his garage. The agent explained that his “level of trust for somebody that’s doing this out of their garage is a lot less than someone like you that’s got a store, you know, that’s got a business address that you’re doing it there. I mean, God knows, if the cops get suspicious they come knock on your freakin’ door.” “Anytime,” Burton agreed, picking up on that thread. “We pay workman’s comp. You know, we, I sponsor a sheriff ’s softball team, you know,” Burton said with a chuckle, appreciating the agent’s apparent understanding of the situation. “And the thing is, though, with this guy,” Cosey continued, referring to the less-trustworthy dealer, “I don’t know that he’s blatantly breaking the law, but he probably wasn’t as up on it as you are, because you’re a businessman.” “Well, this is not a hobby,” Burton replied in agreement. “I’ve got family. I’ve got a life here in town, and I’m not gonna jeopardize it, you know. So, like I said, I can’t wait to meetcha,” Burton said, adding another chuckle. Before they ended the call, Cosey reiterated his desire to put Burton at ease. “Okay, alright, well, I will see ya in the mornin’,” Cosey said. “Please, please, I cannot stress this enough: Don’t worry about this. I’ll come by tomorrow. We’ll shake hands. We’re gonna get along great. I’ll take, if you’ll give ’em to me—now, you don’t have to give ’em to me—” “Oh, absolutely, no, I want to,” Burton insisted.

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“But, uh, if I get my hands on these compounds—these, uh, samples— then I’ll send ’em off to our lab, and soon as I get lab results back, I’ll be more than happy to give ya a call and say, ‘Hey, look, it’s in compliance.’ I have a feeling it will be. But then we clear it up and I can go on and start concentratin’ on things that I need to be concentratin’ on. I’m goin’ be up here for about another two hours right now, doing paperwork on real drug dealers.” “I hear ya. Well I’ll be there at 9 until you get there.” “Okay, alright,” Cosey said, making extra clear, again, that he wasn’t in a rush. At least he didn’t want Burton to think so. “And if you gotta leave for a few minutes, you know, don’t worry, I won’t call the Marshals service looking for ya,” the agent said with a laugh. “I won’t be there right at nine o clock. I guarantee you that. If I’m right there at nine o clock, it’s because I woke up at 7:30 and couldn’t go back to sleep.” Burton had an MRI scheduled for his knee in the morning, so he took the agent up on the offer to push their drug meeting back a bit. “Oh, you know what, if we can say 9:30, I do have an MRI at eight o clock in the morning, just to be sure. So let’s make it 9:30.” “I won’t be there before 9:30,” Cosey said. “I probably will not be there at 9:30 precisely. But don’t look for it. Don’t expect me there before 9:30.” “Deal,” Burton told the told the DEA agent. “Alright, sir. Have a good night. Don’t let this worry ya. Everything, I’m sure, is gonna come out roses. And don’t, ya know, don’t give it another minute’s thought. I’ll see ya in the morning.” “Yes, sir, have a good evening.” “Alright, you too.” “Bye bye,” Burton signed off to the agent.22

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Come on in, Cosey

It’s not every day that a drug dealer sets up a meeting with a drug agent. At least not when the dealer knows the agent is an agent. Less common is the dealer giving the agent a tour of his enterprise and handing him samples. Nor do dealers frequently offer agents the opportunity to shut them down. Rarer, still, does the agent decline the offer. But that’s what happened the morning after the Vegas raid, when Special Agent Claude Cosey visited Burton Ritchie at Zencense in Pensacola. Like Burton, Cosey was from neighboring Alabama. He’d been with the DEA since 1996. He began his law enforcement career in 1984, with the Escambia County, Alabama sheriff ’s office, across the border from Pensacola. (Pensacola is in the somewhat-confusingly same-named Escambia County, Florida.) A few years later, Cosey went to work for the state Alcoholic Beverage Control board. He never worked an alcohol case at ABC—even there, he worked drug cases. In his last two years with the board before joining the DEA officially, he was on the agency’s task force in Mobile, where he would start his federal career. He did a year in Miami before heading to Pensacola, where he was stationed since 1998.1 After the warehouse raid on July 25, Vegas DEA agent Dave Behar called the veteran drug enforcer that afternoon. Behar explained that they arrested 53

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a guy named Ryan Eaton at a warehouse earlier that day, and that Ryan told Behar he worked for a Pensacola company called Zencense, run by a guy named Charles Burton Ritchie, who also ran the Psychedelic Shack.2 Cosey drove to the Shack before talking to Burton that night. He investigated two locations, on Plantation Road and North Ninth Avenue. Inside both shops, he saw packets of Bizarro, Avalanche, and Neutronium in glass display cases. They were all labeled “not for human consumption” and marked with the Zencense brand. Customers could buy actual incense from a rack near the front door for twenty-five cents apiece, while glass-enclosed Bizarro packets fetched ten dollars for a 1.5 gram bag, twenty dollars for 3.5 grams, and fifty dollars for 10 grams.3 It was after that day of spice surveillance on July 25 that the agent spoke with Burton and agreed to meet the following morning, hoping to take him down eventually.4 Cosey walked away with a colorful and flavorful spice haul on July 26. Burton gave him original, blueberry-, cherry-, lime-, and strawberryflavored packets of Bizarro, bearing the purple and yellow backwards Superman “S” logo. He gave the agent vanilla-, chocolate-, and pineappleflavored packets of the blue and white Avalanche, plus the multicolored Neutronium and Sonic Zero Cherry. Burton showed Cosey the quarantine safe where they kept cannabinoids while awaiting lab results from AIBiotech. Cosey saw workers filling and sealing the spice packets that would ship out to shops across the country. He saw a room with safes containing boxes filled with sealed spice packets. Burton also gave Cosey a $14,000 wire-transfer receipt, to show an example of how they bought the chemicals from China.5 Burton told Cosey they’d leave the business that day if the agent thought they were breaking the law. Cosey didn’t say that. He said it looked like they were trying to comply with the law, and that he couldn’t interfere with their right to commerce. The longtime agent would have loved to take down the whole operation, then and there, but with the Northern Florida US Attorney’s Office hesitant to use the Analogue Act, there wasn’t much he could do.6 So he had to stay in Burton’s good graces while attempting to build a stronger case. He left with the drugs and everyone went on with their day.7 •

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Burton and Ben, meanwhile, thought they were in the clear. They gave the DEA a tour and samples and weren’t arrested. Other dealers didn’t fare as well in Operation Log Jam. That is, the government arrested the competition, effectively increasing Zencense’s market share.8 The company moved production back to Pensacola, hired more employees, and broadened its customer base following the nationwide raids.9 But they were still in the government’s crosshairs. That September of 2012, about a month after Cosey’s post–Log Jam visit, local fire and building inspectors responded to a report of strong chemical smells coming from the Pensacola warehouse. Cosey tagged along, still angling to take down Burton and his empire. The inspectors found code violations. Burton asked them how much time and money it would take to fix. Told he should ask someone in the construction business, Burton said if money can fix it, it will be done.10 Burton was more concerned with Cosey’s continued interest.11 He told the agent as much. Cosey told Burton that, so long as he wasn’t breaking the law, no one could interfere with his right to commerce. But he also told Burton that, even if the compounds he sold weren’t illegal at the time, they could be made illegal in the future.12 Whatever Cosey’s intentions, his vaguely ominous warning served as a realistic explanation of the Analogue Act. The truth was, neither Cosey nor anyone else could tell Burton if he was breaking that law; only a hypothetical jury could. Of course, some chemicals would be closer calls than others, and a dealer could choose to avoid taking the chance altogether. At any rate, the September inspection was the final breaking point that led Burton and Ben to leave the industry.13 Burton called Cosey later that day and told him they were getting out.14 They were doing so with some peace of mind, having retained lawyers after the Log Jam raid, including a Florida attorney named Timothy Dandar, who sent them a letter saying XLR-11 was legal under federal law.15 •

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While Burton and Ben were winding down the business, two families on opposite ends of the country mourned the deaths of their sons. The young

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men in New York and Oregon died that summer of 2012 after smoking spice—Zencense spice, their families would allege in civil suits. Victor Woolson turned nineteen a week before the Log Jam raids, the same age as Burton when he was arrested in 1990 and got clean. Victor was entering his second year at Cayuga Community College, in New York State, where he grew up. He was working toward a criminal-justice degree and thinking about a law-enforcement career.16 Victor’s mom, Teresa, became concerned about her son earlier that year. He suffered depression. He was acting out in ways she hadn’t seen before: Angry, mean. One night, he didn’t return to the family’s Central New York home in Scriba, near Oswego. Police put out an APB. State troopers found him in a motel room two-and-a-half hours away.17 He had apparently been using bath salts.18 As the months went on, Teresa thought Victor was improving. He started his second year of college that August. But he also smoked spice. Teresa was worried again. She confronted him. He replied, “How bad can it be, Mom? It’s in the store.”19 Teresa turned fifty-three on August 9, 2012.20 A Thursday. (The family celebrated the weekend before, at the house.) Victor went swimming with friends in Lake Ontario, at a beach called Flat Rock. Before swimming, he smoked spice, a Zencense product called Avalanche.21 Teresa was dozed off in her chair at home when police came to tell her that Victor drowned in the lake. She spent the rest of her birthday in the emergency room, looking into her son’s hazel eyes while her heart broke into tiny little pieces.22 Victor died the next day. Her youngest child and only boy.23 She started a nonprofit to raise drug awareness. She called it the VOW Foundation, named for Victor’s initials (Victor Orlando Woolson).24 In the years that followed, the family would gather at Flat Rock on the anniversary of Victor’s death, sending Chinese lanterns up to the sky in his memory.25 •

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Christoph Karl LaDue Jr. died September 5, 2012, after smoking Bizarro. He was twenty-three.

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The 6-foot, 270-pound young man was schizophrenic.26 He smoked marijuana to help his symptoms.27 Karl got Bizarro from a head shop in Medford, Oregon, called Sky High Smoke N Accessories.28 He lost control after smoking it around eight that night.29 He felt like he was on fire. He flailed around the yard of the family home on Wagner Creek Road in Talent, Oregon. He screamed for his father.30 He fell into thorny blackberry bushes near the house. His parents helped him back onto the porch. He broke a porch railing, swung at his father, and ran off. His family called the police.31 Emergency workers responded to a call that night of a young man exhibiting what they called bizarre behavior.32 They found Karl walking down the road, sweaty and shirtless, wearing sweatpants and shoes that were both wet. He walked up to a neighbor’s house about a half-mile from his. Police shouted at Karl to get on his knees while he was outside of the neighbor’s house. He didn’t. Officers tased him. He went down to a knee, then got up and ran. Officers tased him again. Karl kept running. Three officers eventually took him down, kicked him, pepper–sprayed him, and handcuffed him while he tried to fight them off. He went into respiratory arrest.33 Responders started CPR and took Karl to the hospital. He was pronounced dead that night.34 The medical examiner ruled the cause of death a “sudden cardiac arrest during episode of agitated delirium in a young schizophrenic man with attempts at restraint involving tasers, stun guns, pepper spray and handcuffing.” 35 Both the Woolson and LaDue families would later sue some combination of Zencense, Burton, Ben, others on the supply chain, and government personnel. Those suits settled years later. 36 Before all that legal wrangling, though, in the immediate aftermath of the deaths, the Woolsons and LaDues grieved while Burton and Ben moved on from the business that the families would blame for stealing their sons. •

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By the fall of 2012, Burton and Ben were ready to leave the spice game for good. They still weren’t being arrested, but uncertainty lingered after the Log Jam raid and the latest law-enforcement visit in September. It was getting too stressful. They were done.

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But the question remained how they’d leave the game, exactly. Burton, the 80 percent owner, wanted to sell the company. Ben wanted to walk away after their inventory ran out, though he was also up for selling—if it could be done cleanly.37 Things with their buyer, Tony Nottoli, did not go cleanly. Like Burton, Tony was an entrepreneurial head-shop owner in recovery.38 Originally from Chicago, he ran the Stuffed Pipe chain in Fresno, California.39 He had also distributed Detoxify, a product that helped people pass drug tests, which Burton sold at the Shack.40 Burton and Ben had a low-sevenfigure deal with Tony that required him to put money toward increasing production, so he could take over seamlessly.41 But Tony, whose behavior became more and more erratic in Burton and Ben’s view, didn’t have all the money together. So the Zencense owners had to stay in the business longer than they wanted to, or else they would have lost money if they walked away at that point. Making that time even more hectic, Ben was marrying his fiancé, Ashley, that October. After the wedding, he and Burton worked round-the-clock to close the deal.42 Jason Way, who was also in recovery and had worked with Tony in the company that sold Detoxify, was a consultant for the deal. Burton and Jason bonded over an awkward moment in the mid-’90s, before Jason knew Burton was in recovery too. He sent Burton a bottle of booze as a corporate-client gift during the holidays. They wound up laughing about it and stayed close since.43 Burton trusted Jason, and increasingly didn’t trust Tony, so Jason’s job was to make sure things didn’t fall apart.44 A November 2012 email that Jason sent to people who stayed on while the company transitioned read like a bland corporate memo. Its subject line: Agenda/Talking Points for Tomorrow’s Staff Meeting. “As we discussed, the purpose of tomorrow’s meeting is [to] provide clarity on the present and future of the business,” his email began. “The business has been sold to a man in [California] named Tony,” it explained, going on to tell employees that, “as of December 1st, Ben and Burton will no longer be here. They are going to pursue other endeavors. They thank you for your contributions to the success of the business.” 45 In another “normal” display of professional behavior, Burton and Jason left glowing reviews for one another on the networking site LinkedIn. Their posts were so typical of generic corporate talk that a casual observer wouldn’t

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have reason to think they worked in the gray-market synthetic-drug industry. “Jason Way is my go-to guy when I have a problem or a project that takes intelligence, integrity and judgment,” Burton wrote. “Jason has the capacity to grasp the entirety of a problem and follow the implementation of a solution through to completion.” 46 Jason wrote of the Psychedelic Shack and Zencense owner, “I have worked with many entrepreneurs in my career, and Burton is at the top of my list for vision, drive, intellectual horsepower, and analytical thinking.” He added a “word of warning for anyone who might consider working for or partnering with Burton—if you aren’t ready to run, you best not get involved with him in the first place.” 47 Tony wasn’t ready to run, as Burton and Ben saw it. He didn’t have the funds needed to close the deal. They reached an agreement where Burton and Ben would receive a percentage of future sales from the business after they sold it. Though, technically, they didn’t sell the business itself. They sold the assets, in a series of contracts that one wouldn’t find memorialized between, say, cocaine traffickers. One of their agreements, for example, provided that “if Seller ever has a good faith belief that Purchaser is not operating the Business in accordance with all local, state, federal and other laws or regulations governing the Business, Seller may, at its sole and absolute discretion, require Purchaser to shutter the Business or pay the entire unpaid Purchase Price to Seller on not less than forty-eight (48) hours advance written notice.” 48 The deal was done by the end of 2012. Burton called Cosey and told him they were out for good.49 Tony changed the company name to ZenBio, a mix between Zencense and Tony’s company, BioNaturals.50 ZenBio moved production to California and its call center to Alabama that December, when Florida banned the latest spice ingredient, XLR-11.51 But even after they left the day-to-day, Burton worried that Tony would do something illegal and mess things up for everyone. He called Jason to tell him to keep Tony off the property in California. Jason told Burton to fuck himself—it was Tony’s business.52 Whoever’s business it was, it didn’t last much longer. The company shut down in the spring of 2013, following the April arrest of a PhD chemist named Adam Libby. Libby worked for AIBiotech, the company that Zencense (and then ZenBio) used for chemical testing. He was also a synthetic-cannabinoid supplier in his own right. Burton and Ben (and

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Figure 2. A 3.5-gram packet of Bizarro—Blueberry, seen next to a sidewalk in Washington, DC, July 2015. Note the “not for human consumption” disclaimer. The ZenBio branding indicates it was produced during the Tony Nottoli era (or, given that the photo was taken two years after ZenBio went down, it’s a knockoff of a product from that era). The packet pictured would have gone for twenty dollars at the Psychedelic Shack in 2012, according to a price list observed by Special Agent Cosey at the time. Photo credit: Ricky Carioti/Washington Post.

then Tony) were among Libby’s customers, as they supplemented their Chinese imports with domestic sourcing.53 Libby was charged after selling kilos to an undercover agent he met at an Atlantic City trade show.54 When agents arrested the chemist at his Virginia home early in the morning, he wore a T-shirt that read: Research Use Only! Not For Human Consumption.55 Libby moved to dismiss the analogue charges, arguing he was “being prosecuted for conduct when he could not have known that in the future it would become illegal.” He lost that argument, pleaded guilty, and was sentenced to thirty months in prison.56 Tony, for his part, was caught with a kilo of AM-2201 in his home. The substance was scheduled by then, not a potential analogue subject to legal debate.57 He agreed to cooperate with the government, which agreed not

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to prosecute his wife or charge him with drug offenses (he pleaded guilty to misbranding and conspiracy to defraud).58 Federal prosecutors in Fresno also promised to forgo six-figure forfeitures from Tony.59 Burton’s old friend Jason Way, however, would be charged for his role in the business, as would others who stayed on in California and Alabama.60 Yet, for the time being, Burton and Ben, the ones who started it all, were free, as the first Log Jam cases rolled into court, and the oddity that is the Analogue Act came into focus.

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Florida Sunshine

Among the spice sellers swept up in Log Jam was another Florida dealer, Ilan Fedida. A “for sale” sign hung outside the Daytona Beach building he used to make spice. The realtor told investigators that the tenant was renting month-to-month, without a contract, and was doing something “a little shady . . . but everything is legal.”1 Like Burton, Ben, and other US distributors, Fedida ordered synthetic cannabinoids from China. Agents found thousands of individual packets, plant material, and sprayers used to apply the cannabinoids to the plant material. They also found over a kilo of UR-144, one of the unscheduled substances Burton, Ben, and others had shifted to ahead of Log Jam, which DEA chemist Arthur Berrier didn’t think was an analogue.2 Federal prosecutors in Orlando charged Fedida under the Analogue Act.3 His fate became linked with another Florida dealer, Timothy Hummel. Hummel also changed his chemicals in response to government bans, shifting to XLR-11 after JWH-018 was scheduled.4 (Berrier also thought XLR-11 wasn’t an analogue but, after he dissented on UR-144, he wasn’t asked to formally review that substance.)5 The government seized millions of dollars from Hummel across multiple bank accounts.6 When agents searched his Redington Beach residence, which they also seized, they saw 62

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Wikipedia printouts for JWH-018 and AM-2201, an earlier successor to JWH-018 that was scheduled just before Log Jam. Hummel filed a motion for return of property in Tampa.7 Though their cases were in different geographic divisions, and Hummel wasn’t even charged criminally yet, Fedida and Hummel’s lawyers teamed up to attack the Analogue Act. That fall of 2012, Fedida’s lawyer in Orlando, former federal prosecutor Cynthia Hawkins, moved to dismiss the criminal charges.8 She argued, as others had before and would after, that the Analogue Act was too vague to stand under the Constitution. She wanted to fight for her client. Problem was, Fedida didn’t have money for expert witnesses. Hummel did. She joined with Hummel’s lawyer in Tampa, Jim Felman, to make an unusual request, for a joint hearing on Fedida’s motion to dismiss the Orlando charges. “Indeed,” she wrote to Judge Roy “Skip” Dalton in Orlando, “there is a substantial risk of inconsistent adjudications of these motions, which are based on the same legal and factual issues, because Mr. Fedida is unable to hire more than one expert: the DEA seized all of his cash and other assets.” Holding a joint hearing, Hawkins added, “will protect Mr. Fedida’s Constitutional rights and more fully flesh out the issues before the Court, which is clearly in the interests of justice. . . . This is particularly true where the Court’s opinion may well be precedential, both in this district and nationally.” 9 Over the government’s objection, Judge Dalton, a recent Obama appointee, granted the motion for a joint hearing. He held it on December 6, 2012. Hummel’s lawyer, Felman, a partner in a Tampa firm, led the way at the hearing. Like many attorneys who waded into the strange world of analogues, Felman never heard of the Analogue Act before Hummel hired him.10 But he had long been involved in criminal-justice reform. He won an American Bar Association award the year before, in 2011, for urging Congress to reduce the 100:1 crack/powder disparity from the 1986 Anti-Drug Abuse Act. Congress made it 18:1 in the 2010 Fair Sentencing Act.11 The 2012 hearing in Orlando turned into a roast of the Analogue Act and how DEA wielded it. Felman’s first witness was Lindsay Reinhold. She worked for NMS Labs, a company that did chemical testing for law enforcement and private parties. She previously worked for the New York

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Police Department’s lab. She explained how requests for testing potential analogues had increased. “The problem,” Reinhold testified, referring to the Analogue Act’s substantial-similarity test, “is that that question is very, very difficult to answer because we have no guidelines. There’s no scientific method. There is no set of rules as to what constitutes similarity or what it means to be ‘substantial’ versus ‘just similar.’ ”12 Reinhold explained how she tried to address the issue earlier that year, by forming a group to look for a standard way to evaluate analogues, gathering chemists from federal, state, local, and private labs, as well as academics. “It was pretty consistent that people were struggling in the laboratories [with] how to deal with this issue and it became very evident that we needed to do something to address this as the calls began increasing in number and prosecutors, defense attorneys were calling to find out if things were analogues or not.”13 Felman asked Reinhold what she made of the government’s analogue analysis in the case, performed by DEA Diversion Control chemist Terrence Boos. “I feel there was not very much information put in it to really allow anyone else to interpret his opinion as he did,” she said of Boos’s work. “To say something is substantially similar because the differences are minor doesn’t really give me any real information.” Felman asked if she thought the DEA chemist’s opinion “would find acceptance in the way in which it’s been explained, at least to date, within the scientific community?” Reinhold said no.14 Asked by the prosecutor on cross-examination if she thought anything could be an analogue, Reinhold said yes. She thought the recently scheduled AM-2201 was an analogue of JWH-018. On redirect, Felman asked her to explain the difference between AM-2201 and UR-144, as each compared to JWH-018. She said JWH-018 and AM-2201 are identical except for one atom. “So it’s essentially like a Ferris wheel that’s got ten cars on it, and in JWH-018 they’re all blue and in AM-2201 they’re all blue except one is red,” she said. “When you look at UR-144 and JWH018, you have your Ferris wheel where everything is all blue, but in UR-144, one of the cars is no longer a car.”15 The prosecutor also asked Reinhold if she invited anyone from the DEA to participate in her analogue advisory group. She said the DEA was the first call she made, and that she asked Boos specifically to join.16 “We

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were inviting people to submit their interest in participation and had several DEA chemists from a variety of their satellite labs ask if they could participate,” she said. “They were very quickly told they were not allowed to participate by their employer.”17 The next defense witness was Terry Stouch, who had worked on chemical structures for thirty years, including at the Naval Research Laboratory in DC, and for the pharmaceutical giant Bristol Myers Squibb. Stouch said it’s “very difficult to really define what similarity is between molecules. It’s like trying to say, ‘Well, are two people similar?’ ” He called the substantialsimilarity test “essentially nonsense.” He was also critical of DEA chemist Boos’s approach. Felman asked Stouch, “If a client were to come to you and say, ‘This is JWH-018. We’d like you to create some analogues of it to see whether you could tweak the way that it works,’ would you consider UR-144 or XLR-11, even within the realm of what you would consider to be an analogue in your work?” He said “not only would I not, but my client would not come back to me. My client would say, ‘Are you nuts?’ ”18 Another defense witness was one who testified for the government that same day in a different case unrelated to the Analogue Act. After appearing in Tampa, Paul Doering made the hour-and-a-half drive east to the Orlando analogue hearing. A pharmacy professor at the University of Florida in Gainesville, Doering wore his Gator tie to court, a nod to the school’s mascot. His son, Chris, was a well-known player on the football team in the early ’90s, who went on to a pro career.19 Doering was an emeritus professor, having reached retirement age. But he was enthusiastic as ever. “So even though I teach the same courses that I have all these years, I’m there every day, I just don’t get paid for it,” he said on the stand. “Call me stupid, but it’s something that I enjoy doing and will do so until it’s not fun anymore.” 20 Recalling how he came to testify against the government that day after testifying for it, Doering explained his conversation with Felman when the defense lawyer initially reached out: “I reviewed what’s known and what’s not known, I guess, about these substances, and on first blush, I said to you, ‘Mr. Felman, they look like analogues to me,’ until I began to read in detail the analogue bill, and I think I remember telling you, ‘You know what? That’s a bad law.’ ” Describing his thought process upon learning of the Analogue Act, Doering continued, “I looked at that and said,

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‘Substantially similar,’ well, what does that mean? What components of those structures have to be the same before they’re considered analogous?’ And the more I reviewed that—in fact, you may remember you said, ‘Think about it over the weekend.’ And on Monday morning I called you and said, ‘You know what? I’ve read the statute. I’ve compared what’s in the literature. I’ve tried to make sense out of the analogue law, and as far as I can tell, it’s uninterpretable in its current form.’ ” 21 Doering gave an example that was reminiscent of counterculture chemist Sasha Shulgin’s 1987 lecture in the wake of the Analogue Act’s passage. Attempting to illustrate the act’s subjectivity, Shulgin wondered aloud if a 1986 Pontiac taillight’s structure was substantially similar to a 1984 Chevrolet’s.22 At the 2012 hearing in Orlando, Doering compared a Cadillac to an Edsel. “They are not substantially similar, even though they may both be automobiles,” Doering said. “On the other hand, a Camaro Super Sport and a Camaro regular kind of thing are pretty analogous. They have the same form and the same function.” As to the second prong of the Analogue Act—substantially similar effect—Doering said “there is not only a dearth of information in that area, but there’s a total absence of said information, short of case reports where somebody presented to a hospital emergency room allegedly having taken this drug, that drug and the other drug. So I’m here today, I guess, to say that the analogue bill, as far as I understand and apply it, is uninterpretable. I mean, that’s kind of all I’ve got to say.” 23 On cross, the government asked Doering about the problem the Analogue Act sought to solve. “With regard to a manufacturer of a product that is intended to get people high and is being sold as a synthetic legal marijuana,” Assistant US Attorney James Muench asked, “aren’t the bad guys, so to speak, going to continue to change their, I’ll call it, active ingredient when DEA schedules the ingredient they had been using?” 24 “That’s the way it has happened,” Doering replied. “And to be frank, when I was first contacted by Mr. Felman, I thought, you know, ‘This is illegal. People can’t do this.’ You know, and I had my own little hissy fit until I looked at the law and said, ‘You know what? It’s not these people’s behavior’s fault that the law is inadequate and flawed.’ ” 25 Eventually, DEA’s Terrence Boos made it onto the stand, after a day of his approach being denigrated by defense experts. Boos joined the DEA in 2007, around the same time as Arthur Berrier, and, like Berrier, he had a

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doctorate in organic chemistry.26 Before joining the DEA, Boos was a researcher at the National Institute on Drug Abuse. Asked by the prosecutor what the phrase “controlled substance analogue” means to him, Boos basically gave the Analogue Act’s definition: “It means that a drug itself can be demonstrated to be both structurally and pharmacologically similar to that of a controlled substance. It shares those features.” Of UR-144 and XLR-11 as compared to JWH-018, he said, “My opinion is that they’re not that dissimilar, that there’s enough of a conserved structure within these two substances, that’s why they’re part of the same structural class, that they’re substantially similar in structure.” 27 On cross, Felman asked Boos if he believes there’s “any objectively accepted criteria now in the scientific community for what the phrase ‘substantially similar in chemical structure’ means?” Boos said it “really doesn’t have a place in—but I will—let me correct myself there. I will say that these substances within the context of how they are evaluated and the framework that were provided under the Controlled Substances Act, they fit that definition of being substantially similar.” 28 That’s when the hearing started down a more contentious path. “Yeah. Well, I know that’s your opinion,” Felman said. “But the question I’m asking is, do you really think that there is consensus in the scientific community of chemists as to what the phrase ‘substantially similar in chemical structure’ means? It sounds like you agree there’s not.” 29 “Well, I think you’d have to see what group of chemists you survey in trying to develop that sort of definition or what that meaning might be. I think, based on experience, you might have a differing opinion.” 30 Felman kept pressing. “I’ve asked you whether you think there’s consensus in the community, and your answer is essentially it depends on who I ask?” 31 “I couldn’t comment,” Boos replied. “I don’t know what the entire scientific community, how they view the term.” 32 His question still unanswered, Felman pushed on: “Do you believe that your methodology in determining that these substances are substantially similar in their chemical structure has general acceptance in the scientific community?” 33 “I believe I’ve arrived at a sound decision based on the science, and those individuals or scientists in my shop have also arrived at the same

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conclusion,” Boos replied. Though he didn’t specify, Boos’s “shop” apparently referred to his section within Diversion Control. Had he been talking about the DEA writ large, that would have included Berrier’s Forensic Sciences lab, which arrived at a different conclusion. The government didn’t disclose Berrier’s dissent ahead of the hearing. Felman asked the judge to mediate: “Could I ask that the question be answered, Your Honor?” Judge Dalton asked Boos: “Can you answer the question?” “Well,” Boos replied, “could you rephrase the question so that—” “I’ll tell you what the question was,” Judge Dalton said. “The question was whether or not you believe that there is consensus in the scientific community that your methodology for assessing whether or not these compounds are substantially similar exists, yes or no?” 34 “I believe if you ask a medicinal chemist where I arrive at with my conclusions, they would agree with you. If you ask somebody that’s not— doesn’t have that same expertise, they would not arrive at the same—” “Dr. Boos, that wasn’t the question,” the judge said. “Listen to me. The question is, do you agree or do you not agree as to whether or not there is consensus within the scientific community that the methodology that you utilized to determine whether or not these compounds are substantially similar within the definition of the Act exists? Is there consensus or is there not?” “I think today has demonstrated there is not,” Boos said.35 •

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Felman and Boos squared off again a couple of months later, in Wisconsin. Authorities there found an unopened packet of Bizarro next to the dead body of Travis Abbott.36 He had shot himself in the head. Along with local law enforcement, the DEA seized over $100,000 worth of product from the Smoke Shop, which Abbott frequented. Agents took spice that contained UR-144 and XLR-11—neither of which was scheduled when seized.37 The Smoke Shop filed a motion for return of property. The head shop wanted its spice back.38 At the February 2013 hearing, the prosecutor said the government couldn’t return it. He said “the risk of giving these things back to . . . The

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Smoke Shop to sell is great, considering that ultimately our position is yes, there’s a likelihood—and we believe our witnesses will say—that these are analogues of a Schedule I controlled substance.” The judge presiding over the case, George H. W. Bush appointee Rudolph Randa, observed a different risk: “you’ve got a small business, and the Government comes in and takes its livelihood away.” 39 The Smoke Shop called Professor Gregory Dudley to the stand. An MIT PhD and chair of West Virginia University’s chemistry department, Dudley had been set to testify for Felman in Orlando in 2012, but they didn’t wind up getting to him in that long day of roasting the Analogue Act. At the Wisconsin hearing, the Smoke Shop’s lawyer asked the professor, “Do you know of any chemist who has given an opinion that UR[-144] and JWH[-018] are substantially similar in chemical structure other than those in the DEA?” Dudley said no.40 Diversion Control’s Boos testified again for the government. After giving his opinion, as he did in the Fedida hearing, that UR-144 is substantially similar to JWH-018, the prosecutor asked, “Did other chemists at the DEA review your conclusion that the chemical structures of JWH-018 and UR-144 are substantially similar?” 41 “This is a shared opinion amongst the chemists in the joint chemical evaluation section,” Boos replied, referring to his Diversion Control group that worked on analogues. “We have a total of 6 chemists, and I’m one here today, but you could easily substitute me with another chemist,” he said. The prosecutor continued, “And as with your conclusion that JWH018 and UR-144 are substantially similar, did you also have the other chemists at DEA review your conclusion that JWH-018 and XLR-11 are substantially similar?” “Other chemists have evaluated them, and arrived at the same conclusions,” Boos replied. “The drug evaluation section,” he specified.42 That qualifier eliminated Berrier and Forensic Sciences from the equation, though a person without Boos’s insider knowledge would have no reason to mind the distinction. To aid in its spice-retrieval effort, the Smoke Shop’s lawyer brought Felman up from Tampa to question Boos.43 The Florida lawyer began his cross, “Good afternoon, Dr. Boos. You and I met before in December in Florida, is that correct?”

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“We have met before, you’re correct,” Boos replied, a rare point on which they agreed. Felman asked, “Do you agree or do you not agree as to whether there is consensus within the scientific community that the methodology that you utilized to determine whether or not these compounds are substantially similar within the definition of the Analogue Act exists?” “I’m not able to comment on that,” Boos said. “I’m unaware that the scientific community has weighed in on my opinion.” “You admit that there is not such consensus, don’t you?” Felman asked. “It’s never been put up for consensus,” Boos said. Felman put Boos’s testimony from the Fedida hearing up on a monitor and asked, “Do you recall the Court asking you: ‘Listen to me. The question is, do you agree or do you not agree as to whether or not there is consensus within the scientific community that the methodology that you utilized to determine whether or not these compounds are substantially similar within the definition of the Act exists? Is there a consensus or is there not?’ And your answer: ‘I think today has demonstrated there is not.’ Do you recall giving that answer?” 44 “I do,” Boos said. “And that answer was based on I provided my opinion, and in that very same example you provided another defense expert’s. Within the context of that, you’re correct.” Felman continued, “Do you know whether or not your methodology of concluding whether molecules are substantially similar in chemical structure has been subjected to any sort of peer review or publication?” “It has not been subjected to publication, and peer review would be internal peer review within our section at the drug chemical evaluation,” Boos replied. Felman pressed on: “Are you aware of any way that anyone could test the conclusions that you reach with respect to substantial similarity in chemical structure?” “I am not aware of one,” Boos replied. Felman kept pushing: “Now, it’s you, essentially, along with your colleagues I guess you said that decided that UR-144 and XLR-11 are analogues of JWH-018?”

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“We decided that it could be treated as a potential analogue if intended for human consumption,” Boos replied. “Did anybody within the DEA disagree with you?” Felman asked. “Not that I’m aware of,” Boos said. “Did anybody express any doubt or concern about it?” Felman asked. “Not that I’m aware of,” Boos said.45 That would mean he never heard about Arthur Berrier’s UR-144 dissent expressed the year before.46 •

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While briefs in the Smoke Shop case were pending in Wisconsin, the DEA issued a notice of intent to schedule UR-144 and XLR-11. The agency issued a temporary scheduling order for those substances in May 2013, under the emergency provision of the 1984 law. That is, the chemicals became indisputably illegal after the government seized them from the head shop, while a judge was deciding if the government could keep them. After that scheduling, Wisconsin federal prosecutors told the judge he should reject the shop’s motion for return of its spice, “because those drugs are intrinsically contraband.” 47 Judge Randa agreed with the government’s bottom line, but he wasn’t happy. “If the DEA did not schedule these substances, the Court was going to grant The Smoke Shop’s petition,” the H. W. Bush appointee wrote. “As the record in this case demonstrates, the overwhelming weight of opinion in the scientific community is that the chemical structures of UR-144 and XLR-11 are not substantially similar to the chemical structure of JWH018, and but for the DEA’s scheduling of these substances, the Court would have ordered the property returned.” The judge observed that 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.” 48 •

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Down in Florida, litigation in the Fedida case was still playing out after the December 2012 hearing. The case attracted the attention of the

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National Association of Criminal Defense Lawyers. The group filed a brief pressing Judge Dalton to hold the Analogue Act void-for-vagueness as applied to XLR-11 and UR-144, like Damon Forbes successfully asked Judge Babcock in Colorado to do for AET in the early ’90s. “The vague statutory language leaves the government free to determine secretly that a substance is substantially similar to a scheduled drug and then pick and choose at will among those distributing the substance for targeting and prosecution,” NACDL’s brief said. It noted that Boos “determined secretly in April and May 2012 that UR-144 and XLR-11 are substantially similar to JWH-18. The DEA gave no public notice of those determinations.” 49 Judge Dalton wasn’t persuaded. He denied the defense motion that spring of 2013. Disagreement among experts doesn’t amount to vagueness, the judge reasoned. Yet, he was careful to point out that it was a preliminary stage in the case, and that the feds would face trouble at trial if they tried to rehash the same testimony from the hearing. In addition to Boos’s testimony about structural similarity, prosecutors had called another DEA witness to talk about the effects prong of the Analogue Act. That witness’s testimony showed the agency relied on speculation. Judge Dalton said he’s “not inclined to permit an expert to testify to a jury where the basis of his opinions rests only on broad scientific principles.” 50 There would be no jury.

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11

Information Asymmetry

Facing trial, Fedida’s lawyer Cynthia Hawkins demanded that DOJ turn over any exculpatory evidence, called “Brady” material. That’s shorthand for the Supreme Court’s landmark 1963 decision, Brady v. Maryland. The ruling put the burden on prosecutors to disclose favorable, material evidence to the defense.1 The man whose case led to that historic ruling, John Brady, was convicted of a Maryland murder stemming from a robbery. Brady claimed he was only involved in the robbery, not the killing. After he and his codefendant, Charles Boblit, were convicted and sentenced to death, Brady learned Boblit previously confessed to the killing. Prosecutors hadn’t told Brady. That violated the Constitution’s due-process protections, the Supreme Court held.2 In Fedida’s case, the Brady material Hawkins sought was any evidence of conflicting government opinion on the analogue status of UR-144 and XLR-11.3 “Such information,” she wrote to Judge Dalton, “would be helpful to the defense in cross-examining the government’s expert witnesses.” Dalton granted the motion, ordering the prosecution to provide any Brady material within ten days. He set trial for July 2013.4

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But the prosecutor, E. Jackson Boggs, filed his own motion, asking Judge Dalton to clarify his order.5 Boggs said he consulted with the DEA and was “unaware at the present time of any documents, etc., reflecting conflicting opinions on the analogue status of the substances involved in this prosecution or of debate within DEA or DOJ regarding notice that the substances are analogue controlled substances.” Hawkins’s request, the prosecutor said, “is so broad that in order to comply with it as stated would involve a labor-intensive review of tens of thousands of documents and emails and perhaps hundreds of thousands of such documents and emails to determine whether such documents exist.” 6 To clear up the issue, Judge Dalton set another hearing, for May 30. It was there that Hawkins let on that she heard about internal analogue disagreement. “I don’t think that all of DEA was involved,” she said. “I believe that it would be confined to a certain division such as that that Dr. Boos’ testimony covered.” If there is such disagreement within the government, she said, that would help to show that a defendant doesn’t have the required guilty knowledge or intent.7 But the prosecutor complained that it would be “overburdensome” to comply with Hawkins’s discovery demand. “How do you know that, Mr. Boggs?” Judge Dalton asked. “You haven’t asked. How do you know it’s overburdensome?” “I have spoken with legal counsel at DEA,” the prosecutor replied. “I have spoken with ODE,” he said, referring to Boos’s Diversion Control group responsible for analogues. “I don’t believe I have an obligation to do an e-mail search of the archives of e-mails at ODE or in DEA or in the entire Department of Justice over the last several years,” he went on. The prosecutor wanted “some direction from the defendant. What’s the disagreement over, whether substances were analogs? I haven’t heard of one. . . . Where did she hear of disagreement? Give me some direction.” 8 Judge Dalton observed that they “have here what’s commonly described as asymmetry of information.” Fedida didn’t have access to the DEA. The government did. “So you asking for direction from the defendant is a little bit incongruous,” the judge told the prosecutor. “I don’t mean to lecture about your responsibilities to provide the defendant with due process, you know.” But the judge said it “sure seems to me that if there was a disagreement or squabble within the Department as to whether or not these drugs

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met the standard or met the definition, that that would certainly be fair game for the defense to cross-examine them on even if they considered it, rejected it and said, you know, ‘I don’t agree with that minority view. It’s not consistent with my own evaluation of the scientific evidence and so I appreciate your thoughts, but I disagree.’ So do you need more direction than that?” the judge asked.9 “Well, I—let me see if I’ve got it straight,” Boggs replied. “If I inquire again more pointedly with ODE—” “Well, in other words, don’t—you know, I appreciate that you—I appreciate your argument about whether or not this information should be nuanced,” Judge Dalton said. “I don’t want the request to be nuanced.” The judge didn’t want Fedida to be convicted and then to learn afterward that “ ‘lo and behold, ODE is not the only person, place where all this work was done and several other labs were involved in it and we actually selected the lab that gave the opinion.’ I’m not suggesting that’s what happened, but nobody wants that outcome.”10 He ordered the government to determine whether it knew of any disagreement as to whether UR-144 or XLR-11 qualified as analogues.11 The judge’s order yielded results. After the hearing, Boggs sent Hawkins a letter. In it, he explained that he learned how the DEA makes analogue decisions, including that Forensic Sciences consults with Diversion Control, and that there was a UR-144 dissent. As the prosecutor said in his letter, referring to Forensic Sciences as “SF,” he learned that, “As part of its deliberative process, ODE consulted with SF regarding the chemical structure of UR-144. One SF chemist opined that UR-144 and JWH-018 were not substantially similar in structure because JWH-018 has a naphthyl structural group while UR-144 has a tetramethylcyclopropyl group. As part of its analysis ODE recognized this structural distinction and considered it during its deliberative process. On behalf of DEA, ODE determined that UR-144 met the definition of a controlled substance analogue.”12 Boggs sent his letter to Hawkins months after Felman and Boos squared off at the February 2013 Smoke Shop hearing in Wisconsin. Boos said in that Wisconsin hearing that he wasn’t aware of anyone in the DEA who disagreed with him about UR-144. But the agency’s explanation of its UR-144 review, by way of Boggs’s letter, raised further questions regarding what Boos knew about Berrier’s dissent—and when he knew it.

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Hawkins asked the prosecutor who this Forensic Sciences chemist was. The prosecutor said it was someone named “Art Berrier,” but the government didn’t want to hand over the details. The prosecutor invoked the deliberative-process privilege, which lets the government keep certain information secret, on the thinking that public exposure could hinder robust internal discussions. Disclosing any further information on the matter, the government argued in its latest motion to Judge Dalton, “will undermine the agency’s ability to engage in meaningful discussions of the policy issues involved in analogue determinations and will potentially stifle rigorous intellectual discourse on the issues of analogue determinations.”13 Judge Dalton set yet another hearing, for July 19, 2013. The morning of the hearing, Boggs turned over a batch of emails to Hawkins. They showed Berrier’s UR-144 dissent the year before, along with a chain of emails showing that his dissent was never formally sent back to Diversion Control in writing. “As you can understand, DEA, you know, doesn’t really—isn’t really keen to turn over their e-mails in a criminal case, their internal e-mails and their deliberative process,” Boggs said at the hearing. “But my office has taken the position that we just want to turn over everything.”14 With Berrier’s dissent disclosed, the prosecution dismissed Fedida’s analogue charges. He pleaded guilty that summer of 2013 to possessing a scheduled substance, JWH-018, which he was charged with in a superseding indictment after the hearing.15 He was sentenced to one year of probation and had to forfeit $200,000. But the government agreed to return or not pursue some $100,000 seized from other bank accounts and a Mercedes-Benz.16 Prosecutors later charged Felman’s client Hummel criminally too. He pleaded guilty to a minor misbranding charge and, like Fedida, received probation.18 He agreed to give up millions of dollars in forfeiture, and, like in Fedida’s case, the government gave back some of the money initially seized. Plus, he kept his property.19 All told, it was a relatively successful outing in the criminal system for Fedida and Hummel. But it took, among other things, an unusual joint hearing, a defense lawyer obtaining inside DEA information, and a thorough judge.

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And while Hawkins was instrumental in exposing Berrier’s dissent, Felman continued the fight against the Analogue Act and how the government used it to wage the synthetic-drug war. In a July 2013 motion back in Tampa, he wrote, “This forfeiture action, and the DEA’s ‘Operation Log Jam’ from which this action follows, presents this Court with the latest installment of the modern American assault on the bedrock principle of mens rea.” Latin for “guilty mind,” mens rea stands for the principle that the government must prove that guilty mind in criminal cases. As Felman saw it, analogue prosecutions forged new ground in this area, in a bad way. “This action,” he wrote, “presents 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. Indeed, through this action the prosecution seeks to convert our government from one of laws not merely to one of men, but to a government of a single man—a chemist employed by the DEA named [Terrence] Boos.” 20 In a follow-up filing after Berrier’s dissent emerged,21 Felman recounted Boos’s testimony and the letter that DOJ sent Hawkins. At the December 2012 hearing in Orlando, Boos said other scientists in his “shop” agreed with him that UR-144 was an analogue of JWH-018; at the February 2013 hearing in Wisconsin, Boos said he wasn’t aware of anyone in the DEA who disagreed. But DOJ’s letter, Felman pointed out, showed that Boos’s section in Diversion Control consulted with a Forensic Sciences chemist in 2012 who thought UR-144 wasn’t an analogue.22 Yet, Boos swore he didn’t learn of Berrier’s dissent until after the 2013 Wisconsin hearing, when he was preparing to testify in another case, in Minnesota. Testifying in that Minnesota case in September 2013, Boos said he hadn’t looked into why Berrier dissented, though he agreed on cross-examination that the Forensic Sciences chemist was “very respected.” 23 “It has not been provided to me,” Boos said of Berrier’s UR-144 dissent. “You didn’t ask?” the defense lawyer inquired. “I didn’t ask.” 24

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Being Civil—at First

Burton and Ben weren’t charged criminally in the immediate aftermath of Operation Log Jam. But they had their own civil-forfeiture battle. They found a Florida lawyer to fight for them, too, even if he started off skeptical. A self-described hard-ass, David McGee was a prosecutor in the Northern Florida US Attorney’s Office during the cocaine-soaked ’80s.1 A veteran journalist called him “a nice guy” but “a holy terror as a prosecutor. Few defendants ever left his presence with a smile.” 2 He tried the legendary defense lawyer F. Lee Bailey, for contempt of court, stemming from Bailey’s mishandling of a drug-lord client’s stock holdings.3 Facing forfeiture in Vegas, Burton and Ben met with McGee.4 He was, by then, a partner in a long-standing Pensacola firm, Beggs & Lane. But while he defended people accused of crimes for a living, he still didn’t like drug dealers.5 Ben felt intimated when McGee grilled them, as if the lawyer implied that, perhaps, they did do something wrong.6 But as he dug into the case, the former prosecutor came to see the men as victims of government overreach. He concluded that they hadn’t committed a crime, and that the feds had no right to their property. He was all in for their quest to retrieve the more than a million dollars in cash and 78

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assets seized after the Vegas warehouse raid. As McGee saw it, he wasn’t representing drug dealers.7 One thing that helped convince the former lawman was hearing from a current one: Claude Cosey. In a sworn deposition, the DEA agent confirmed that Burton gave him a tour of Zencense, handed him spice samples, and offered to leave the business. “Didn’t he tell you that if you told him he was doing anything illegal, he would close it down that day?” McGee asked Cosey. “He did say that,” the agent answered. “Did you tell him he was doing anything illegal?” “No,” Cosey said.8 In the spring of 2013, the former Zencense owners became further convinced they were in the clear. That April, the DEA gave notice that it was emergency scheduling XLR-11 and UR-144. In a press release, the government gave thirty days’ notice to get rid of those substances, before they were temporarily scheduled in May.9 To Burton and Ben, it was an admission that the chemicals weren’t illegal before then. Plus, they had offered to the government, via Claude Cosey, to stop selling them long before the DEA gave notice—another point in their favor, they figured.10 The government saw it differently. Indeed, after Burton and Ben left the business, the investigation into them intensified. Cosey was still angling to charge them. By January 2013, his effort was approved as an Organized Crime Drug Enforcement Task Force investigation.11 Launched in the Reagan era, OCDETF is the Justice Department program that’s considered the centerpiece of the Attorney General’s drug-war strategy.12 DOJ approved the inquiry into Burton and Ben’s business, labeling it a Priority Target Organization,13 meaning a group that was engaged in “the highest levels of drug trafficking and/or drug money laundering.”14 The investigation’s code name: Operation Bizarro.15 On January 25, 2013, Cosey met with Rachel Templeman, one of the Zencense salespeople who stayed on in the Tony Nottoli/ZenBio era. They met in a Starbucks parking lot in Pensacola, so Cosey could get more information about the business. Templeman worked at ZenBio’s call center in Alabama, which had moved across the border after Florida banned XLR-11 on the state level in late 2012, before it was scheduled

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federally. She gave Cosey information about other people at the company and a copy of a sales order.16 Several days later, at the DEA Pensacola office, she gave Cosey an outline of the sales script she used. It had the word “spice” crossed out, with “potpourri” written in its place. She told Cosey she was quitting.17 •

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Burton and Ben moved on with their lives as McGee fought forfeiture. With their money that wasn’t tied up in legal proceedings, they could afford to pursue passion projects. Burton and his wife Stephanie and their two young children moved to Park City, Utah, where he’d launch his next bold venture, in the film industry. He told Jason Way he wanted to chase a dream.18 The newlyweds Ben and Ashley stayed in Pensacola, where Ben started an entertainment company called Kinematic; he’d work with Burton on films, too, but he wanted to make his own way.19 Ryan Eaton worked with his former bosses for a time as well, first as Ben’s assistant, then Burton’s, mirroring the supporting role he played at Zencense.20 Burton and Ben’s film success was propelled by a mix of spice money, poker, and, as Burton put it, gumption. Through their production company, Heretic Films, they won awards and worked with celebrities like Kevin Pollak and Samm Levine. The actors admired Burton’s drive and ability to keep many plates spinning at once.21 Burton met Pollak, an avid card player himself, at a Clinton Foundation poker tournament. He met Levine, who joined Heretic as creative producer, at a game at Pollak’s house.22 Among other works, the company produced Pollak’s 2015 directorial debut, Misery Loves Comedy, and the 2014 Sundance-award winning Low Down—a melancholy biopic of jazz pianist Joe Albany, who battled addiction.23 Burton had a brief on-screen moment in Low Down, as a staff physician who tells Albany to “keep playing it clean.” 24 He also scored a non-speaking part as a bartender in the 2013 action-comedy Red 2, which he likewise landed through poker, winning the role in a charity tournament.25 The Pensacola News Journal ran a local-boys-make-good story on Burton and Ben’s cinematic exploits. “Ritchie is used to taking chances,” the article observed, noting his varied commercial pursuits over the years, the latest being Heretic Films with Ben. “This is my sixth or seventh

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Figure 3. (L-R) Gregory Segal, Jim Norton, Kevin Pollak, Caroline Hirsch, Lewis Black, and Burton Ritchie attend the 2015 Tribeca Film Festival’s New York premiere of the documentary Misery Loves Comedy (produced by Burton and Ben’s Heretic Films) at SVA Theatre 2 on April 22, 2015, in New York City. Burton would be indicted in three federal districts that fall. Photo credit: Desiree Navarro.

industry that I’ve gotten into the core of through research and gumption,” Burton told the paper.26 Ben’s greatest achievement without Burton was co-founding Pensacon, the city’s answer to the Comic-Con convention. It’s been billed as “the premiere comic book and pop culture convention serving Pensacola and the Gulf Coast.” 27 Following its 2014 debut, the Pensacola News Journal called it a “hugely successful nerd culture event.” 28 A local blog also touted the festival, quoting Ben recalling that “many say this was the ‘best run con’ they have ever been to.” 29 It generated millions in revenue for the region and led to Ben joining the Chamber of Commerce. In a sign of the festival’s imprint, each year the city’s airport transformed into Pensacola Intergalactic Airport.30 Working with Ben on Pensacon inspired Ryan and his friend Shauncey Fury to put on their own festival: PensacoLebowski, an homage to the

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Figure 4. January 30, 2015. Pensacola Mayor Ashton Hayward is joined by Pensacon founders Ben Galecki, left, and Mike Ensley at the Pensacola International Airport during a press conference to announce the partnership between the airport and the 2015 Pensacon convention scheduled for February 27–March 1. Part of the partnership includes the renaming of the airport as Pensacola Intergalactic Airport through February. Ben would be indicted in three federal districts that fall. Photo credit: Ben Twingley/USA Today Network.

Coen Brothers’ dark comedy The Big Lebowski.31 Pensacon attendees cosplayed—a blend of the word “costume” and “play,” meaning they dressed up as characters. Ryan went as Lebowski’s Walter Sobchak, the irritable, gun-toting Vietnam veteran played by John Goodman. After seeing Pensacon’s success, Ryan and Shauncey brought their festival to the city in September 2014. They set up shop at a bowling alley (a recurring setting in the 1998 film) and served White Russians, the protagonist Jeffrey “The Dude” Lebowski’s go-to beverage. They even got one of the actors from the movie to attend: James Hoosier, who plays Liam, a rival bowler in Walter and The Dude’s league. While it didn’t become an annual event like Pensacon, the paper deemed it “a big hit.” 32

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In 2015, after stints helping Burton and Ben in their film and festival pursuits, Ryan was working as a chef at a Japanese restaurant in Pensacola when law enforcement approached. They wanted him to flip on his former bosses. But Ryan didn’t think he had any information to give. He didn’t think anyone in Zencense broke the law.33 •

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David McGee had been trying to convince the feds of that as well. In early 2013, he and his law partner, Greg Miller, who was previously the US Attorney for the Northern District of Florida, flew out to meet with government lawyers in Nevada, to try to talk them out of pursuing the case.34 The government lawyers were unmoved. So be it—McGee would fight the forfeiture, to trial if need be. But the government wasn’t ready to fight. It objected that going forward with the civil case would jeopardize a potential criminal case.35 So while Burton and Ben ascended in their creative careers, their litigation sat in limbo: Assets seized, not charged criminally but unable to challenge the seizure, and with no direct answer from prosecutors if or when charges would come. As time wore on, it became clearer that charges were a “when,” not an “if.” In early 2015, the feds in Nevada were still pushing off Burton and Ben’s attempt to fight the civil case. They said indictments were near for the duo and maintained that letting the civil case progress would imperil the criminal case. Taking civil discovery could mean digging into the DEA’s internal analogue issues, because the government’s rationale for keeping Burton and Ben’s property was premised on the claim that the men were selling analogues. That raised the question whether they were— more specifically, whether XLR-11 was an analogue of JWH-018 (a question the DEA didn’t seem to want Arthur Berrier answering in writing after he dissented on UR-144). “I have to be careful and parse my words, for obvious reasons, because this does involve a criminal investigation,” Michael Humphreys, the government’s forfeiture lawyer in Nevada, said at a January 2015 hearing, squaring off against McGee, who pressed to move the case forward. “This involves not only a criminal investigation, but criminal investigations,”

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Humphreys said. “What I want to convey to this Court is that this is a large, broad, far-sweeping investigation, with many components to it, many aspects.” He said the civil case “provides, through its discovery processes, a conduit to the information in the criminal cases that they would not otherwise be entitled to.” 36 But the government could only keep the civil case sidelined for so long. Later that month, the judge denied the latest request to pause the proceedings.37 The question, though, was what Burton and Ben were entitled to—or, who they were entitled to. They wanted to depose Diversion Control’s Terrence Boos, who they knew had admitted in previous cases that there wasn’t a scientific consensus on analogues. They also wanted to depose Forensic Sciences’ Berrier, who they knew from the Fedida disclosure dissented on UR-144 and, thus, disagreed with Diversion Control on XLR-11 as well.38 As for Boos, the government wasn’t planning on calling him to the stand, so Humphreys said Burton and Ben shouldn’t have access to him. As for Berrier, his testimony was irrelevant, the feds argued, because Burton and Ben were selling XLR-11, and Berrier never formally dissented on that substance. Of course, that argument ignored both that UR-144 and XLR-11 are nearly identical, and that Berrier likely wasn’t asked to formally review XLR-11 for that reason. At any rate, the Nevada judge split the difference in a July 2015 order, blocking a deposition of Boos and allowing one for Berrier.39 But just when Burton and Ben’s civil case picked up, the criminal hammer dropped.

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The Right to an Attorney

McGee tried to stop the feds from pursuing forfeiture or criminal charges. Instead, they did both, bringing indictments in a whopping three federal districts. That’s unusual enough, but, to make things stranger, not one of those districts was in Florida, the site of Zencense’s corporate headquarters. Apparently, the US Attorney’s office covering Pensacola still didn’t have “the balls” to use the Analogue Act, as Cosey put it.1 Unfortunately for Burton and Ben, their nationwide success opened them up to charges in seemingly any district that wanted them. Those three districts were Nevada, where the warehouse was raided in Log Jam; Virginia, one of the many states whose shops sold Zencense (and, later, ZenBio) spice retail; and Alabama, where the call center moved across the border. McGee hadn’t seen such tactics in four decades of practice, with the government dividing the case into three districts. It gave prosecutors three bites at the apple, avoiding double-jeopardy violations by charging different time periods or different crimes in different districts. It all stemmed from the same venture over the course of about a year. The Nevada indictment charged a drug conspiracy from June-July 2012, in the run-up to the raid and its immediate aftermath.2 The Virginia charges picked up from there, with a drug conspiracy from August 2012 to April 85

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2013.3 The Alabama indictment also charged from August 2012 to April 2013, with conspiring to defraud the FDA.4 It was a gut punch for Burton and Ben, even if they knew charges might come. They learned they had warrants out for their arrest in the fall of 2015. Agents wanted Ben to flip on Burton. But like Ryan, Ben didn’t see anything to flip on. He didn’t think they broke the law.5 Represented by McGee, Burton and Ben appeared before a magistrate judge in Pensacola. Judge Charles Kahn Jr. ruled they could stay free on bond as their first indictment played out in Virginia. Judge Kahn observed the “extraordinary steps” they took to comply with the law. He noted the “highly unusual circumstance” of their invitation to Special Agent Cosey, “providing samples of product to law enforcement, disclosing to law enforcement the names and makeup of the substances in question, providing lists of persons with knowledge of the operation, and posing, in detail, to law enforcement the question of whether the substances were, in fact, prohibited during the relevant time.” Fleeing, the judge said, “would certainly destroy their families, and even result in Mr. Ritchie’s estrangement from his children.” He said they “have everything to lose by failing to appear.” 6 Though the case had just begun, things were looking up for the defense. Until they got to Virginia, that is. In a crushing move, prosecutors sought to kick McGee off the case. They argued he wasn’t allowed to represent both defendants. It was a conflict of interest, they told Judge Raymond Jackson, the federal judge handling the case up there. As a general matter, in a multi-defendant case, defenses can conflict— for example, in a murder case, if the evidence could go either way as to which of two defendants pulled the trigger. A lawyer representing both defendants could be forced to choose what’s better for one or the other. That dynamic was at play, Virginia prosecutors claimed. As their motion to disqualify McGee and his partner Greg Miller pointed out, it’s “very common” for the government to make a plea offer to the less culpable defendant in a multi-defendant drug case. That less culpable defendant would then provide information and testimony against the more culpable defendant, prosecutors reminded the judge.7 It was unsurprising that the government viewed the case through that plea-bargaining lens. Most cases are resolved that way, with few defendants willing to risk the tougher penalties they’d face if convicted at trial

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(the “trial penalty” being its own subject of criticism by the defense bar).8 Yet, Burton and Ben were determined to join the relative few who put their fate in the hands of a jury. “Each defendant has expressed that he would like to present his defenses to the pending charge in this case at trial,” they responded in their motion.9 No matter how the case would be resolved, there was no daylight between Burton and Ben’s defenses. They weren’t going to flip on one another. And that wasn’t only because they were friends. As they saw it, there was nothing to flip on. McGee couldn’t be conflicted, because, in their view, there was no conflict. Plus, defendants can waive any potential conflict; Burton and Ben did so, here.10 McGee and Miller also stressed that their clients were low on money. By that point, the feds had seized or filed claims against assets totaling around $5 million. Access to funds they still had was limited, so they’d have trouble hiring new lawyers. Disqualifying their chosen (and paid) lawyers would thus “permit the government to gain an unfair and great strategic advantage,” they argued in their motion response. It would block them from having lawyers “they have worked closely with for over three years, and who they know are well prepared to represent their individual interests in all matters now pending in the three federal districts.”11 That wasn’t a problem, the government assured the judge. Replying, in turn, the Virginia prosecutors said that, if the defendants can’t afford new lawyers, then the “very able Court-appointed attorneys who practice before this Court are still preferable to conflicted counsel.”12 Judge Jackson sided with the government, kicking McGee and Miller off the case. The judge cited the Supreme Court’s 1998 ruling in Wheat v. United States. There, the high court approved a trial court’s decision to block the same lawyer from representing two defendants in a marijuana conspiracy, even though the defense waived any conflict. It was a close case, decided 5–4, with the majority led by William Rehnquist, the Nixon appointee elevated to chief justice by Reagan. Over dissent that accused the majority of giving judges too much power at the expense of defendants’ choices, Rehnquist wrote that trial judges consider the issue “not with the wisdom of hindsight after the trial has taken place, but in the murkier pre-trial context when relationships between parties are seen through a glass, darkly.”13

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Even though Burton and Ben waived any conflict and said they wanted a trial, Judge Jackson said he was concerned there could be a cooperation offer to only one of them, which could force their lawyers to choose what’s better for one or the other. “The Court has serious concerns about the likelihood of a conflict, and finds that withdrawal of each of Defendants’ attorneys and appointment of separate counsel is in the best interests of each Defendant,” the judge wrote in his November 2015 order.14 With that, Burton and Ben were stranded in Virginia, facing aggressive prosecutors, a judge who seemed to view the case through the government’s eyes, and needing new lawyers. Saying nothing of the indictments in Nevada and Alabama waiting for them on the other side of however the Virginia case turned out. And in the short term, there was still the matter of their detention, on which their new judge had to rule. The defendants’ new, court-appointed lawyers would have keeping their clients out of jail as one of their first tasks. At the bail hearing, Burton’s short-lived appointed lawyer, John Gardner, told the judge that his client “has seven films right now that are in production with over 500 people that are relying on that for their jobs.” Echoing McGee’s view, Gardner called the charges in three states “a strategy that the Government has employed here, this idea of bringing multiple indictments in different districts and carving it up that way so that each time they get a bond, get carted off to the next district for another bond hearing. It’s all one case, Judge.”15 Ben’s appointed lawyer, Christian Connell, who’d stay on the Virginia case, told Judge Jackson that his client had his name to fight for. The Pensacon CEO’s reputation in the community was being tainted by media reports of his arrest.16 Explaining the festival’s importance to the region, Connell told the judge that the city “renamed the airport, and they renamed it the Pensacola Intergalactic Airport.” Like McGee, Ben’s new lawyer had been practicing for decades but never saw a case like this. As he recounted to Judge Jackson, he’d been doing defense work since the late ’90s and didn’t recall, “in my history as a criminal defense attorney, when you are guilty of doing something that’s illegal, that you go to the government that wants to prosecute you and you say, ‘Come on in,’ you invite the DEA agent in, you give them a tour of the facility, you make

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available to him substances for testing and ask him to tell you, ‘Hey, are we doing anything wrong?’ ”17 Connell also brought up the Smoke Shop case from Wisconsin, where the judge said UR-144 and XLR-11 weren’t analogues of JWH-018 (before reluctantly ruling that the DEA could keep the chemicals after the agency banned them while the case was pending). But trial-court decisions don’t bind trial-court judges in different districts. The Supreme Court and federal appeals courts control the trial courts. Perhaps more than anyone, a federal judge doesn’t like being told what to do. “Are you telling me the Court should in some way be persuaded by this opinion from the Eastern District of Wisconsin?” Judge Jackson asked Connell, effectively answering the question by asking it.18 Connell moved on to something more explosive. He drew the Virginia judge’s attention to the internal DEA emails that came out of the Fedida case in Orlando, showing that, in 2012, senior research chemist Arthur Berrier thought UR-144 wasn’t an analogue of JWH-018. “So here’s an internal government email saying, basically, a few months before Mr. Galecki and Mr. Ritchie were doing what they were doing as far as the indictment is concerned, these two things weren’t substantially similar,” Connell said.19 Responding to the Berrier issue, the government sought to downplay the DEA chemist’s role, as it did in cases across the country in which defendants raised Berrier’s dissent. One of the Virginia prosecutors, Kevin Hudson, told Judge Jackson that Berrier’s job “was not to make the determination as to whether a chemical was an analogue or not. He didn’t serve in that department. They have chemists at DEA, as the Government’s mentioned, that do that. Dr. Berrier was not one of them. Dr. Berrier was one of the forensic chemists who does the routine testing of the substances that are submitted.” 20 It was true that Diversion Control had the ultimate authority within the DEA when it came to analogues. It was also true that Forensic Sciences labs across the country do routine tests. But that characterization didn’t reflect Berrier’s role, whether in the analogue-review process—where he was tasked with reviewing Diversion Control monographs—or in his specialized lab, where he didn’t do routine work.

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The government also tried to use Burton and Ben’s film-industry success to keep them locked up. “Since both defendants are involved in the financing of movies and movie festivals, being part of the movie industry,” the prosecutor said, “these defendants, I would imagine, probably have access to friends with private jets. Of course we know the problems that creates. There is no manifest.” That argument went too far for Judge Jackson, who pounced on the prosecutor: “Isn’t that speculation, Mr. Hudson?” “Yes, Your Honor,” Hudson conceded. “I understand.” “Pure speculation.” “Yes, sir,” Hudson replied. “I understand. We will move on.” 21 But even if the defendants didn’t plan to vanish in a mystery movie jet, the prosecutor proceeded to allege that their film money was dirty. Thus, the argument went, they were too dangerous to roam the streets ahead of trial. “They have taken their profits and have invested them in the movie industry,” Hudson said. “But what is wrong with that, one might ask? Well, if you take drug proceeds and make investments with them, whether it is with an intent to make the money look clean again or just spending more than $10,000 of dirty money at a time, it is money laundering one way or another. There is a continued risk that they will continue to commit crimes. I think that is the most accurate way to put it.” 22 Judge Jackson disagreed, or at least he didn’t see fit to cage them ahead of trial because of it. Though he previously tossed their chosen lawyers off the case, the judge took to the defense arguments this round. Later that month, about a week before Christmas, he ordered Burton and Ben released on bond. The defendants “presented substantial evidence to challenge the charges against them and do not pose a risk of flight or danger to the community,” the judge wrote. His order rattled off nearly all of Connell’s points in their favor, including the emails showing Berrier’s UR-144 dissent; their consultation with lawyers bolstering their view that they thought the substances were legal; and their cooperation with Special Agent Cosey.23 It was a huge win for the defense. They wanted to be free, obviously. But the bond ruling also signaled that, perhaps, Judge Jackson saw the case through their eyes. “Defendants will likely mount a vigorous defense as to a number of key issues,” he wrote, ordering their release on $50,000

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bond, limiting Burton’s travel to Utah and Ben’s to Florida. The judge would later have to amend the order beyond their home states, to let them travel to the other districts in which the government charged them.24 •

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Ahead of trial in Virginia, Burton retained a lawyer with rare analogue experience: Lloyd Snook. Snook thought the Analogue Act was stupid.25 He likened the feds’ approach to the journalist and critic H. L. Mencken’s definition of puritanism: the haunting fear that someone, somewhere, may be happy.26 Snook had recently taken an analogue case all the way up to the Supreme Court—and won.

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Clarence Thomas on Bath Salts

Stephen McFadden lived on Staten Island. He worked construction. He won the only case the Supreme Court ever decided on the Analogue Act. Unanimously.1 In 2007, McFadden started a business, buying overstocked items and reselling them on the internet. He sold bath salts too. His brother, an officer with Immigration and Customs Enforcement, looked with him on the DEA’s website and saw that the chemicals he sold weren’t scheduled.2 McFadden came to law enforcement’s attention during a 2011 bath-salts investigation that focused on a Charlottesville, Virginia, video store. Lois McDaniel, who ran the store, gave up her New York supplier, McFadden. The feds charged him under the Analogue Act.3 Lab tests showed the bath salts he sold contained MDPV, one of the compounds over which Diversion Control and Forensic Sciences clashed during analogue reviews. Backed by Diversion Control’s expert testimony, prosecutors in McFadden’s case alleged it was an analogue of the scheduled substance methcathinone.4 (They didn’t charge it as an analogue of MDEA, the scheduled substance Diversion Control initially proposed as the comparator, before Arthur Berrier disagreed. Berrier thought methcathinone was a better comparator; the DEA apparently came around to that view.)5 92

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Representing McFadden, Lloyd Snook moved to dismiss the indictment on due-process grounds. The Fifth Amendment to the Constitution says people can’t be “deprived of life, liberty, or property, without due process of law.” 6 People need to know what the law is if they’re to have a fair shot at abiding by it. Laws that are too vague run afoul of the dueprocess guarantee. Colorado Judge Babcock cited due process when he dismissed Damon Forbes’s case in 1992, finding the Analogue Act too vague when it came to the substance at issue (AET) and the internal government disagreement over it.7 The Analogue Act, Snook wrote in his December 2012 motion in the Western District of Virginia, “is unconstitutional in that it gives no notice to a private citizen of which drugs are prohibited.” The lawyer who’d later represent Burton Ritchie wrote that the government can’t charge someone who “relied on the advice of a federal law enforcement officer that there was no legal prohibition on selling the substances that Defendant was selling.” 8 Even for people who know about the 1986 law, Snook wrote, its amorphous substantial-similarity standard isn’t much help. “In this case, the United States has done Caligula one better,” he wrote, referring to the Roman Emperor who placed the law in such tiny print, so high in the air, that no one could read it. “Caligula had the text of the laws inscribed in a place where the public could not read them; in this case, the United States has posted and printed an incomplete list of the banned substances. The effect is the same—people of ordinary intelligence cannot know what is permitted and what is not.” The judge denied Snook’s motion.9 McFadden was convicted after a four-day trial in 2013.10 The analogue issue was front and center. One of the government’s experts was Thomas DiBerardino, Diversion Control’s lead reviewer on MDPV, the one who Arthur Berrier said told him to be a “team player.” At McFadden’s trial, the Virginia prosecutor asked DiBerardino if the DEA has an analogue list. “We do have a table for our own benefit to keep track of what we’ve analyzed, yes,” the DEA witness replied. He added that it’s an internal document, not for the public. Asked why the list isn’t public, DiBerardino said “if we go public with this list, unfortunately, the list is not inclusive. We can in no way maintain an all-inclusive list of these analogues because

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they appear faster than we can write our names and we just don’t have the manpower to devote ourselves full time to this issue.”11 After McFadden’s conviction, Snook called the Analogue Act “stupid” in a Wall Street Journal story headlined “‘Bath Salts’ Pose a Hurdle for Prosecutors.” He said it’s a “bizarre situation where the government has this list they’re not going to tell you about until after you’ve been arrested. I think it’s a really, really serious problem.”12 The Justice Department, meanwhile, touted McFadden’s conviction in a press release that misstated the law. “This verdict demonstrates that synthetic drugs, or bath salts, are illegal to buy and sell under federal law,” the Western District of Virginia’s US Attorney, Timothy J. Heaphy, said.13 His statement was imprecise because, in analogue cases, whether “synthetic drugs” or “bath salts” or anything else is illegal depends on whether they’re substantially similar to scheduled drugs. Whether that’s so is up to the jury. To be sure, the verdict demonstrated the government’s success on that score in McFadden’s case. But under the Analogue Act, any unscheduled substance was just as unlawful after McFadden’s conviction as it was before—that is, only unlawful if a jury said so, based on the undefined substantial-similarity standard. McFadden appealed to the Fourth Circuit, the federal appeals court that covers Maryland, the Virginias, and the Carolinas.14 There are twelve geographic appeals courts below the Supreme Court, plus a specialized court called the Federal Circuit.15 Most cases don’t make it to the Supreme Court, instead terminating at the appeals-court level, if they make it that far.16 Rejecting his slew of arguments, including his claim that the DEA should have to publicize its analogue list, the Fourth Circuit endorsed the government’s view. “[A] list of particular chemical compounds could not encapsulate the variety of substances potentially covered by the Act,” the Fourth Circuit said. Channeling Diversion Control chemist DiBerardino’s testimony, the appeals court said forcing the government to disclose its list would make the modern drug war harder to wage. “Given the creativity of individuals manufacturing these analogue substances,” the court said, “there is genuine potential that the creation of such substances could outpace any efforts by authorities to identify and catalog them.”17 McFadden appealed to the Supreme Court. Snook teamed up with a high-court specialist, Kevin Russell, who had clerked for Stephen Breyer

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and was successful in convincing the justices to review appeals.18 Still, any petition faced long odds. Thousands are filed each year. Fewer than a hundred are granted.19 A common tactic when petitioning for review is to try and convince the justices that a legal issue is in disarray in the appeals courts, needing guidance from on high. That there’s a “circuit split,” in the legal parlance. McFadden’s petition, with Russell as lead counsel and Snook as co-counsel, said that such a split existed here, regarding the level of proof needed to secure analogue convictions.20 When it came to a defendant’s state of mind, the Fourth Circuit only made the government prove knowledge of intending the substance for human consumption. That conflicted with the Chicago-based Seventh Circuit, where defendants had to know they’re dealing analogues. “The circuit conflict compounds the risk of arbitrary treatment already endemic in the statute, under which the lawfulness of distributing any given alleged analogue is decided on a case-by-case basis by lay jurors under a vague ‘substantial similarity’ standard,” McFadden’s petition said.21 He didn’t attack the Analogue Act itself, but the law’s vagueness informed the challenge. The Justice Department opposed Supreme Court review, as it does when almost any conviction is at stake. In its opposition brief, the government said McFadden exaggerated the circuit split. DOJ also worried about the consequences of his preferred Analogue Act interpretation, which, the government warned, could “impede prosecution of street-level dealers and others in the designer drug distribution chain.” 22 The Supreme Court granted review and set McFadden’s case for argument in April 2015. •

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Ahead of the argument, McFadden gained support from outside interest groups. They filed amicus curiae—Latin for “friend of the court”—briefs. That’s typical in Supreme Court cases, given the weighty implications of every appeal. It’s also common, as happened here, that the National Association of Criminal Defense Lawyers would file a brief supporting the defense, because the justices’ rulings set national standards.

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Less typical is hearing from forensic scientists. But they, too, filed a brief supporting McFadden. The scientists sought to spotlight the Analogue Act’s “failure to define the term ‘substantially similar’ and the problems that exist based on the absence of meaning within the scientific community.” 23 Among the brief ’s signatories were witnesses who testified for the defense at the 2012 Fedida hearing in Orlando. They said they opposed drug dealing, but were concerned with “the inconsistent, dissonant, and subjective application of methods used to determine whether an alleged substance is ‘substantially similar’ as there is no reference material or method for this determination generally accepted within the field.” The only consensus was that there was no consensus, they told the court.24 To prove their point, the scientists highlighted DEA chemist DiBerardino’s testimony from McFadden’s trial, excerpting Snook’s cross-examination: Q: Is there a scientifically commonly understood definition to substantially similar? A: I don’t think so, no.

The week before the argument, the writer and scholar Garrett Epps previewed in The Atlantic two upcoming Supreme Court disputes, both stemming from Reagan-era laws that raised vagueness issues. In one, the question was whether part of the Armed Career Criminal Act was too vague. The three-strikes gun law counted prior convictions as “violent” if they involved “conduct that presents a serious potential risk of physical injury to another.” The other was McFadden, which didn’t directly address the Analogue Act’s vagueness, but, as Epps observed, the issue lurked in the background. “Both of these laws are products of the 1980s,” Epps noted. “Back then,” he recalled, “Congress was in a panic over supposed soulless ‘superpredators’ and a seemingly losing ‘war on drugs.’ ” He likened the situation in both cases to legal philosopher Lon Fuller’s Rex, a fictional monarch who, as Epps put it, “wrote a detailed code of laws, but, to avoid confusing the public, kept it secret.” As for the Analogue Act, Epps conceded it was unlikely the high court would strike it down, but he argued that there’s “something a bit disturbing about a law that prohibits unknown substances and then punishes those who don’t know about them.” 25

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The justices sounded a bit disturbed themselves at the April 21 argument. Not necessarily at the law itself. But at how the government wanted to wield it. •

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“Does a jury have to understand the chemical testimony?” Justice Anthony Kennedy asked McFadden’s lawyer, Russell.26 “They’ve got to make the determination that it is, in fact, chemically substantially similar,” Russell replied. “I acknowledge that that’s a lot to ask of a jury,” he said. “It’s a lot to ask of a defendant to understand that.” Russell added that, before this case, he hadn’t heard of the Analogue Act. “I think a lot of people didn’t.” Notably, the Justice Department didn’t defend the Fourth Circuit’s rationale that prosecutors only have to prove intent for human consumption. But DOJ still took a more-expansive approach than McFadden when it came to the government’s burden in analogue cases. “Our position is that we can prevail if we can prove that a defendant knowingly distributed a drug and that he believed that his conduct, that his distribution of the drug was illegal generally,” argued Sarah Harrington, an assistant to the US Solicitor General. The Solicitor General is a top DOJ official and the federal government’s lawyer at the Supreme Court. Justice Breyer, appointed by Bill Clinton in 1994, worried about the breadth of that argument. “To prove that it is banned by the Anti-Turkey Shoot Act proves nothing about his knowledge that this is an analogue,” Breyer said, giving a characteristically absurd example. “And, therefore, once you say, as you are trying to say, I think, that some other illegality is enough to convict, I no longer understand the argument.” But in the real world, Harrington said, defendants “don’t tend to know specific provisions of Federal or State law, but they do tend to know whether what they’re doing is illegal or not.” She said they “tend to believe that what they’re doing is illegal, not under any particular provision, but just generally they believe it’s illegal.” That got Antonin Scalia’s attention. He was appointed to the court by Reagan in 1986, the same year the president signed the Analogue Act into law. Scalia claimed fidelity to textualism, the theory that shuns legislative

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intent, instead focusing on laws’ words. He dueled over the years on the subject with Breyer, who took a pragmatic approach.27 Yet, both interpretive roads led to the same destination in McFadden: The government was overreaching. “That’s not what the statute says,” Scalia told Harrington. “The statute doesn’t say knowingly be a bad guy,” he pointed out. “He thought he was violating a sales tax law, and you’re going to send him up the river for 15 years,” Scalia quipped. Breyer, prone to spinning out lengthy and strange hypotheticals, said “we’re sitting here thinking of examples like, you know, there’s an anti-bird hunting statute, and it says you cannot hunt green-eyed turkeys, you know, and the guy has never heard of that, and you say, okay, I don’t know if this is a green-eyed turkey, and I don’t know if it violates the green-eyed turkey statute, but maybe it violates something. You know, and that sounds like an odd principle, even if you limit to all laws concerning birds. And do you see the problem?” “I understand the Court’s concern,” said Harrington, an experienced advocate before the justices. Still, she pointed to the facts of McFadden’s case to show that he must have known he was doing something illegal: “He sold his products in little baggies and vials instead of having sort of a more traditional commercial packaging. He charged $450 an ounce for these products, which sort of undercuts his belief that he thought that they were aromatherapy products or things that you would actually pour into a bathtub.” Scalia interjected again, more lightheartedly this time. “Well, you know, you charge what the market will bear,” the Reagan appointee said. “And if it has the same effect as cocaine, even if it’s perfectly legal, you should charge 400. Don’t you believe in the free market?” he asked the government lawyer, prompting laughter in the courtroom.28 •

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The court vacated the Fourth Circuit’s ruling in an opinion by Justice Clarence Thomas on June 18, 2015. As expected, the justices didn’t strike down the Analogue Act. But they put a greater burden on the government, even if they didn’t go as far as defense lawyers wanted.29

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In line with the custom when a new opinion issues, Thomas summarized it from the bench. The court doesn’t say which opinions are coming ahead of time, and the most contentious ones generally arrive in late June, the unofficial end of the term. The justices hadn’t yet settled the latest fight over Obamacare in King v. Burwell. That case would have to wait another week, when the law would survive again, in a 6–3 opinion by Chief Justice John Roberts, over dissent by Scalia, Thomas, and Samuel Alito.30 But spectators in court that day had the unusual opportunity to hear from Thomas, who, at the time, rarely questioned lawyers during arguments.31 “Justice Thomas has the opinion of the court[,]” Roberts told the audience. Opinion announcements are also noteworthy because justices will explain their rulings with remarks that don’t appear in their written work. “Petitioner Stephen McFadden came to the attention of law enforcement agents because he was supplying a Charlottesville video store with certain recreational drugs known as bath salts,” the George H. W. Bush appointee recounted in his deep baritone. After pausing a moment, the jurist in his mid-sixties said he had uttered “a sentence which I completely do not understand.” Hearty laughter broke out in the courtroom.32 Thomas’s opinion gave prosecutors two ways to prove knowledge under the Analogue Act. He began by noting that, under the 1970 Controlled Substances Act, which bans scheduled drugs, one way to prove knowledge is to show that a defendant knew he possessed a listed substance, even if he didn’t know what it was. Thomas gave an example of someone who distributes a white powder and knows the powder is scheduled but doesn’t know what it is. The second way, Thomas said, is by showing that a defendant knew the substance’s identity, even if he didn’t know it was scheduled. The justice gave an example of someone who knows they’re dealing heroin but doesn’t know it’s scheduled.33 That same logic applies to analogue cases, the court ruled in McFadden. So prosecutors could show that a defendant knew the substance was controlled under the Analogue Act, even if he didn’t know what it was; or, that he knew what it was, even if he didn’t know it was controlled under the Analogue Act. Whatever that all meant in practice, the court was clear that intent for human consumption alone, as the Fourth Circuit allowed, was no longer enough.34

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The opinion technically wasn’t unanimous. That’s because Roberts only partly agreed with his colleagues. He went further in McFadden’s favor, insisting that a defendant should have to know the substance is controlled, as opposed to just knowing its identity. The chief also suggested that the Analogue Act could come back to the court someday, writing that the part of the opinion he disagreed with shouldn’t be binding “if the issue arises in a future case.” 35 McFadden theoretically helped clarify the law. But it left broader issues unresolved. The fact remained that, unlike scheduled drugs that are publicly listed, a substance doesn’t become an analogue until a jury says so, based on the unscientific substantial-similarity test. Snook told Bloomberg that he had “a hard time discerning from the opinion how exactly I’m going to suggest a new jury instruction to a trial court.” Russell said the ruling was “a little confusing.” 36 A week later, the court decided the other case Garrett Epps previewed, Johnson v. United States. The court in Johnson struck down part of the Armed Career Criminal Act on due-process grounds, for being too vague. It wasn’t an analogue case, but Scalia’s majority opinion channeled the energy that analogue defendants would admire. Referring to due process, Scalia wrote in Johnson, “Our cases establish that the Government violates this guarantee by taking away someone’s life, liberty, or property under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement.” 37 That same year, another defense-friendly analogue ruling came from a jurist who would ascend to Scalia’s seat.

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Curious Animal

When McFadden came out in 2015, Neil Gorsuch was a judge on the Denver-based Tenth Circuit. He was appointed by George W. Bush to the appeals court that hears cases from Colorado, Kansas, New Mexico, Utah, Wyoming, and Oklahoma.1 The Republican appointee sometimes sided with criminal defendants.2 One of those times was in an analogue case: United States v. Makkar. Iqbal Makkar and Gaurav Sehgal ran the Gitter Done convenience store in northeastern Oklahoma. They were retailers, as opposed to wholesalers like Zencense, but their prosecution mirrored Burton and Ben’s in some ways. They offered to have law enforcement test their product, agreed to stop selling it if told to, and were charged under the Analogue Act nonetheless.3 After being convicted at trial, Makkar and Seghal were sentenced to eight and seven years in federal prison, respectively. The Justice Department’s press release celebrated the forfeiture their judge ordered. It noted the confiscation of their interest in two convenience stores valued at over $1 million; other properties valued at closer to $2 million; proceeds of accounts and currency totaling over $721,000; and a Range Rover.4 Siding with the defense on appeal, Gorsuch took aim at the Analogue Act. It’s a “curious animal,” he wrote of the 1986 law. He compared it to 101

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the Armed Career Criminal Act provision recently struck down in Scalia’s Johnson opinion. “The resemblance between the Analogue Act and the residual clause of the ACCA might raise some questions in your mind,” Gorsuch wrote in Makkar, using the career-criminal act’s acronym. “Much as here, one part of that statute lists certain specific violent felonies and imposes special punishments for their commission. Meanwhile, another part of that statute—what’s called its residual clause—extends the statute’s punishments to other, unspecified offenses that can claim similarity to listed ones,” Gorsuch wrote. Like Roberts, he hinted that the drug law might be back before the justices someday, adding, “But so far at least the Court hasn’t reached a similar judgment about the Analogue Act.” Gorsuch thought the high court treated the government too well in McFadden, even if the defense won unanimously. “Whether this construction will suffice to save the Analogue Act from the same fate as the ACCA’s residual clause may still remain to be seen,” he wrote. He called it an “open question, after all, what exactly it means for chemicals to have a ‘substantially similar’ chemical structure—or effect” and “whether terms like those will admit of fair application and afford citizens fair notice.” Taking stock of Makkar and Sehgal’s efforts to comply with the law, Gorsuch wrote, “As a matter of common sense and our collective experience, we have a hard time imagining more powerful proof that a defendant didn’t know the chemical composition of a drug, and didn’t know it was substantially similar to an unlawful substance, than evidence that he turned to law enforcement for information about the drug’s composition and offered to suspend sales until tests could be performed.” Writing for the Tenth Circuit panel, he observed that it’s “difficult for us to imagine why the government would have opposed the introduction of this evidence and taken the trouble to present a written motion on that score but for its extraordinary power to persuade the jury on questions like these.” •

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A few months after Gorsuch issued his Makkar opinion, Scalia died in February 2016 at a West Texas ranch.5 Obama nominated DC Circuit Judge Merrick Garland to fill the vacancy. Bill Clinton had appointed Garland to the appeals court in the late ’90s; the former prosecutor was

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confirmed with bipartisan support to the court that served as a springboard for previous justices like Scalia. Garland’s selection by Obama for the top job was seen as a centrist pick to appease Republicans, who controlled the Senate.6 But Majority Leader Mitch McConnell blocked him from having a hearing or a vote.7 Still, Scalia’s seat seemed likely to be filled by a Democrat. Hillary Clinton only had to defeat Donald Trump that November. She did not. Indeed, Trump’s pledge to put conservatives on the court might have given him the edge in 2016.8 After a year of an eight-member court, Trump nominated Gorsuch in January 2017.9 The clean-cut Coloradan, straight from “central casting,” as the president boasted, idolized Scalia and pledged to carry on his legacy.10 Scalia may have been best known to Democrats and the left for his skepticism of rights for racial and sexual minorities, and for telling people dismayed by the ruling for the Republican in 2000’s Bush v. Gore to “get over it.”11 Perhaps less known to the general public, the Reagan appointee also sided with criminal defendants in some notable rulings, like Johnson.12 Though he lacked Scalia’s brand of bombast, Gorsuch seemed to fit the legal mold. “I can give you a whole long line of cases I can cite where I have ruled for Fourth Amendment claimants and other criminal defendants,” Gorsuch told the Senate at his confirmation hearing. He rattled off a list including the Makkar analogue ruling.13 A Congressional Research Service report cited Makkar as a case where, “On the question of the mens rea—or mental state—requirements of criminal statutes, Judge Gorsuch’s textualist approach is sometimes said to have led to ‘defendant-friendly’ results.”14 •

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Burton and Ben didn’t feel they were in a defendant-friendly environment in the Eastern District of Virginia. They prepared for trial on the indictment that listed them at the top. They were charged alongside head-shop runners and others somehow connected to Zencense on the supply chain, whether they knew them or not.15 Ahead of trial, several of those other defendants pleaded guilty in the summer of 2016.16 Having trimmed their list of targets down to four,

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prosecutors secured a superseding indictment in August 2016 that zeroed-in on Burton, Ben, and the father-and-son duo of Nader and Sharif Abdallah.17 The Abdallahs ran the Red Barn, which sold spice retail in Newport News, Virginia, a military area like Pensacola.18 Trial was set against the quartet. It shrunk to a trio when Sharif pleaded guilty. He agreed to cooperate, including against his father.19 But before they went in front of a jury, Burton and Ben wanted permission from Judge Jackson to tell that jury their whole story.

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Egalitarian Principles

Appointed to the bench by Bill Clinton in 1993, Raymond Alvin Jackson was the second African American judge to serve in the Eastern District of Virginia. He was the first to serve in the district’s courthouse at South Hampton Roads, in the southeastern part of the state. Before he took the bench, Jackson was a federal prosecutor in the district’s US Attorney’s Office. He rose to Executive Assistant US Attorney, becoming the first African American to manage the Norfolk and Newport News divisions. He was also a JAG officer, having retired from the Army Reserve as a full colonel.1 A late ’90s local newspaper profile on the judge was headlined, “Commanding Figure in Courtroom.” 2 Judge Jackson told a bar association in 2014 that his legal career was prompted by the injustices his family and others endured “because of our racial classification.” In school, he said, “I was puzzled by the legal system’s professed egalitarian principles, yet its predictably biased treatment of Blacks. I wanted to be a lawyer who used egalitarian principles to justly resolve conflict.” 3 Some of his most notable rulings were ones siding with criminal defendants, including cases raising the equality issues that led him to the law. During Clinton’s successful 1996 reelection campaign, Judge Jackson 105

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was among the president’s appointees attacked by Republican nominee Bob Dole’s campaign as “soft on crime.” 4 The “Commanding Figure” profile reported that “things got ‘sensitive’ among federal prosecutors when Jackson threw out federal drug indictments in 1995 against black defendants.” It referenced several people who said he “made a huge leap from the US Attorney’s Office to the federal court bench. . . . Some suggested, however, that had Jackson been white, he would’ve been a judge a lot sooner.” 5 Drugs were also the subject of what’s perhaps Judge Jackson’s most significant ruling. It led to a landmark Supreme Court case on sentencing, stemming from the 100:1 crack/powder ratio in the Anti-Drug Abuse Act of 1986 (the law that contained, among many other things, the Analogue Act). In 2004, federal prosecutors brought gun and cocaine charges against Derrick Kimbrough. Besides the gun, officers caught him with fifty-six grams of crack and ninety-two grams of powder. He pleaded guilty. Judge Jackson had a wide range to choose from in sentencing Kimbrough—anywhere from fifteen years to life (a ten-year minimum for the drugs and a five-year minimum for the gun). But there was another set of considerations layered on top of those statutory penalties: the federal sentencing guidelines. They’re put out by the US sentencing commission, an independent agency housed in the judiciary. It was created in 1984, with the goal of reducing disparities and promoting transparency and uniformity.6 The guidelines account for a host of factors, like criminal history and acceptance of responsibility, so a convicted defendant comes to the judge with a guidelines calculation saying how much time they should spend in prison.7 Despite their lofty goal, the guidelines have been criticized as too harsh, including by judges like Jackson. Under the guidelines, Kimbrough faced nineteen to twenty-two-and-a-half years in prison after his plea. Had he been caught with only powder cocaine, he would have faced eight or nine years.8 Over the government’s objection, the judge bucked the guidelines and gave Kimbrough the fifteen-year statutory minimum (ten for the drugs and five for the gun). The guidelines called for a greater than necessary prison term, Judge Jackson reasoned. Under federal law, sentences must reflect the seriousness of the offense, promote respect for the law, and provide just punishment. The judge said Kimbrough’s case exemplified the “disproportionate

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and unjust effect that crack cocaine guidelines have in sentencing.” 9 He thought locking the defendant up for twenty years, as the guidelines decreed, would be ridiculous.10 Prosecutors appealed to the Fourth Circuit. It’s usually a defendant appealing from the trial court, because they’re usually the ones more upset with how a case turns out. On this rarer occasion, the government sought to correct what it saw as the judge’s erroneous analysis. The appeals court agreed with the government. While the case was pending, in 2005, the Supreme Court decided United States v. Booker, which made the guidelines advisory rather than mandatory.11 Still, the Fourth Circuit vacated Kimbrough’s sentence in 2006, deeming too lenient the double-digit term Judge Jackson imposed. A sentence outside the guidelines is “per se unreasonable” when it’s based on a judge’s disagreement with the crack/powder disparity, the appeals court said.12 Kimbrough appealed to the Supreme Court. The justices granted review, heard argument, and ruled for him in 2007. Ruth Bader Ginsburg wrote the opinion. The high court endorsed Judge Jackson’s approach, keeping Kimbrough’s minimum sentence intact, and giving hope to crack defendants seeking greater parity with their powder counterparts.13 Announcing her opinion in December 2007, Ginsburg said the crack/powder ratio “rests on erroneous assumptions about the relative dangerousness of the two forms of drugs.” When Judge Jackson imposed Kimbrough’s sentence, she explained, the judge “both homed in on the particular circumstances of Kimbrough’s case and accorded weight to the Sentencing Commission’s reports showing that the crack/powder disparity yields unjustifiably harsh sentences for crack offenders.” Over dissent from Thomas and Alito, Ginsburg said the Fourth Circuit “could not rationally conclude that it was an abuse of discretion.”14 Judge Jackson was in his office when he heard that the Supreme Court approved his view. He played Handel’s “Hallelujah Chorus” on a boom box: Haaa-le-lu-jah, Ha-le-lu-jah, Ha-le-lu-jah Haaa-le-lu-jah, Ha-lllleeee-lu-jahh. 15 •

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As Burton and Ben’s case neared trial in 2016, they tried to convince Judge Jackson to let them mount the “vigorous” defense he alluded to when he ruled favorably on their bond. (“Defendants will likely mount a vigorous defense as to a number of key issues,” he said then.) But despite his apparent initial understanding of their situation, the judge seemed to sour on the duo as the case wore on. Because the substantial-similarity test is subjective, Burton and Ben wanted to tell the jury why they thought they passed it. They wanted the jury to know they relied on the advice of chemists, lawyers, and law enforcement. As Lloyd Snook put it in a pretrial motion, “it is crucial that the jury understand the basic injustice of this prosecution,” that Burton and Ben “were trying their best to obey the law, not to break the law.”16 In response, Virginia prosecutors said the defendants shouldn’t be allowed to tell the jury they thought the drugs were legal. It would confuse jurors, or invite “jury nullification,” the government argued, meaning prosecutors worried that jurors might acquit the defendants out of a sense of basic fairness, or some other consideration outside the letter of the law.17 Judge Jackson sided with the prosecution. Burton couldn’t show that a government agent “affirmatively assured him that it was lawful to sell spice products” containing UR-144 and XLR-11 for human consumption, the judge said. That human consumption point was important, he stressed, because “although the Defendant can show DEA agent Cosey told him it was legal to sell spice products containing UR-144 and XLR11, the Defendant admits he never told DEA Agent Cosey he was selling his ‘spice’ products for human consumption.” Human consumption is a necessary element of the Analogue Act, the judge emphasized.18 Of course, spice sellers sold the stuff for human consumption. No matter what label was slapped on the product or what one called it, everyone knew people smoked it. The real question was whether the stuff itself was substantially similar in structure and effect to a scheduled substance. On that question, and whether the government could carry its burden to prove Burton and Ben knew they were breaking the law, Judge Jackson wouldn’t let the defendants make that case the way they wanted to. Adopting the government’s view, he noted that Burton only brought Cosey in after he was allegedly breaking the law, so it’s not as if Burton could say he sought approval ahead of time. Therefore, the judge ruled, they couldn’t

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raise an “entrapment by estoppel” defense, as it’s called in the legal parlance.19 The defendants would have to do without that defense and others, as trial began on October 4, 2016, in the case of United States of America against Charles Burton Ritchie, Benjamin Galecki, and Nader Abdallah, in the Eastern District of Virginia, Newport News division. Judge Raymond Jackson presiding.

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A Case about Drug Dealers

“This is a case about drug dealers,” Assistant US Attorney Kevin Hudson began his opening statement to the jury, “who found a way to sell marijuana without actually selling marijuana.” The defendants weren’t keeping up with the law, the government wanted jurors to understand. They were skirting it—and to devastating effect. “In fact,” Hudson said, “the product they produced was even stronger and even more powerful than marijuana.”1 Instead of focusing on the analogue issue, the government boiled it down to a simpler subject: Drug dealing. During the ten-day trial, prosecutors put on evidence of recorded, undercover spice purchases from head shops that were open to the public.2 They highlighted that the chemicals came from China, the foreign nature of the enterprise suggesting a shadiness unto itself.3 They put a string of cooperators on the stand, whose presence further assumed illegality afoot—that there was something to cooperate against. Among those cooperators was Tony Nottoli, the Zencense buyer who flipped after he was caught with a kilo of AM-2201 when it was scheduled. “You were not, in fact, actually charged with any controlled substance offense?” Lloyd Snook asked Tony on cross. 110

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“Correct.” “Even though, a full kilogram of AM-2201 was found in your house, correct?” “Correct.” “And that was, at that time, not merely an analogue, it was a controlled substance, it was on the list, wasn’t it?” “Correct.” 4 Tony testified for the government that Burton was in charge of the company even after the sale.5 The timing mattered, because the Virginia indictment involved post–Log Jam conduct, at a point where, as Burton and Ben saw it, they were out of the business. The government also called the CEO of an actual potpourri company in Arkansas to the stand. Prosecutors sought to distinguish the “potpourri” that Burton, Ben, and every other spice dealer sold under the semantic ruse that no one believed. But however widely accepted the ruse was, it was another piece of evidence that showed the product was technically misleading, even if everyone knew it and no one cared. “As a member of this industry for the past twenty-plus years, are you familiar with any chemicals used in potpourri by the name of XLR-11?” the prosecutor asked the potpourri CEO. “No.” “How about UR-144?” “No.” 6 The government also called Zencense salesperson Rachel Templeman. Her description of the business evoked Fight Club, the Chuck Palahniuk book-turned-film starring Ed Norton and Brad Pitt. The first rule of Fight Club, members learn in the fictional tale: You don’t talk about Fight Club. “I mean, we weren’t to talk about the business, and we weren’t to talk about Burton Ritchie,” Templeman testified. The resemblance between Zencense and the radical amateur brawling organization, however, might have ended there. Asked if there were consequences for failing to heed this omerta maxim, Templeman said, “I don’t recall. I don’t think so.” 7 The first defense witness was going to be Claude Cosey. He flew up to Virginia and was ready to go. Not that he wanted to be there. He was subpoenaed. But Judge Jackson worried the defense would elicit testimony

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from him that ran afoul of the judge’s ruling that they couldn’t raise an “entrapment by estoppel” defense. The judge worried they’d argue that they relied on Cosey’s tacit approval of their business. The safest course, Judge Jackson decided, was to bar Cosey from testifying at all.8 The defendants also wanted to call David McGee, their former lawyer who the judge kicked off the case when they arrived in Virginia. Like what they wanted from Cosey, they wanted McGee to testify that he advised them that their business was legal in the wake of the Log Jam raid. But Judge Jackson blocked McGee’s testimony too. He reasoned that, because Burton and Ben sold XLR-11 before consulting the attorney, they couldn’t rely on his advice to do something they were already doing. It didn’t matter to the judge that the Virginia indictment charged a time-period after they met with Cosey and McGee.9 Judge Jackson didn’t shut the defense out completely. He let them call Doyle Gresham, the Pensacola cop who borrowed bongs from the Psychedelic Shack for anti-drug presentations. “Burton and I, I believe we attended school together probably starting in middle school, maybe even before, and then up through the school system,” Gresham told the jury. The Escambia County lieutenant testified that Burton called the cops when spice was stolen from the Shack during a break-in, and that Burton also reported his employees’ illegal drug use.10 “Are there other instances that you can point to of Mr. Ritchie and the folks at the Psychedelic Shack cooperating with law enforcement in—you know, in your drug, narcotics activities?” Snook asked Gresham. “Yes, sir,” Gresham replied. “When I was working in our narcotics unit, I would put on presentations to the local colleges, high schools, persons that worked in the substance abuse industry for treatments and it would not be uncommon for me to contact Mr. Ritchie and he would allow me to come to his shop and pick up whatever items I wanted to present to them. We would, you know, sign them out. I would—we would log everything. I could take the paraphernalia-style items that were clean along with the narcotics that I would bring from our agency. I could go to the colleges with the materials, lay them out, put on my presentation, try to educate the RAs when it was at a college, try to educate the young people what to look for if it was at schools, to stay away from, and I would also speak to, again, the people that would

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treat substance abuse or other agencies that were attending these narcotics talks so they could recognize different items to be looking for.”11 Getting to the Log Jam raid and its aftermath, Snook asked, referring to the Vegas warehouse, “Mr. Gresham, was there a time in July of 2012 when Mr. Ritchie called you concerned about some products having been seized from another place?” “Yes,” the lieutenant replied. “Being that I was no longer in narcotics, I led him to the supervisor in charge of narcotics. I contacted him and said, please contact this gentleman, figure out what’s going on.” In a short cross-examination, Hudson’s co-counsel, Eric Hurt, flipped the bong-borrowing testimony on its head. “And so the person you went to to get the things where you say, ‘Hey, that’s a drug device,’ is Burton Ritchie?” the prosecutor asked Gresham. “Yes, sir.”12 A case about drug dealers. •

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Finally, the jury heard from the man himself, Burton Ritchie. Snook started by asking about his recovery. “I had been hitting a series of bottoms for several years and I got arrested and I got exposed to Narcotics Anonymous,” Burton began. “And I had a beer the day I got out of jail and that was the last time I ever used.” Asked how he started the Shack in 1992, Burton replied, “We were originally a T-shirt business on Pensacola Beach. Customer demand, you know, was asking for pipes and rolling papers, so we started carrying those things. I talked to my sponsor and said, you know, ‘Are you okay with this?’ And he said, ‘Does it make you want to get loaded?’ And I said, ‘No.’ And he said he was okay with it.” Burton explained the Shack’s philosophy to the jury: “We had basic rules, that became much more specific once I opened Zencense, which was: don’t sell anything illegal, don’t sell anything legal in an illegal manner, and don’t fight city hall.”13 “When you say, ‘Don’t sell anything legal in an illegal manner,’ what did that mean?” Snook asked.

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“So when, in the head shop business, when you go to sell pipes, if somebody comes in and says, ‘I want something to smoke weed in,’ we show them the door. Because a pipe by itself is legal. But if we sell it with intent to break the law, then it’s not legal. So, you know, we later, you know, took that to—as a guiding principle with Zencense, which is, you know, we went to great lengths to find out that what we were selling was chemically legal, and it was explained to us by—it was explained to me by attorneys and chemists and industry standards.” Judge Jackson didn’t like that answer. He thought it ran up against his limit on what the defense could say about relying on expert advice to comply with the law. “Strike the last testimony,” the judge said. “And you understand the limitations, Mr. Ritchie and Mr. Snook.” But it wasn’t clear to the defense what, exactly, was stricken. Snook wanted to know. “Judge, was it just the last—” “I know what it was. Strike it.” “Just wondering,” Snook went on, “if the entire answer was stricken or just the—” “Strike the whole answer.” “Okay,” Snook replied and moved on. He walked Burton through the formation of Zencense and compliance steps the company took, including quarantining and lab-testing shipments so they knew what was in them before distributing across the country. But again, Judge Jackson thought they were running up to the line of permissible testimony. The judge cut Burton off while he was explaining his meeting with Cosey. “I told him how I had gotten started in the business,” Burton said, “I told him what we sold, I told him how we manufactured it, I told him how we ordered it, I told him how we shipped it, I told him how we packaged it, I told him how we sold it. I told him that it was my understanding that it was legal and to tell me if there was something different. I told him—” “Wait a minute,” the judge said. “Objection,” the prosecutor followed. “Objection sustained. You keep going there, and gentlemen, the Court has given your limitations and boundaries on this testimony before you

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started. And you know it, Mr. Ritchie, and you know the boundaries, Mr. Snook,” the judge admonished them in front of the jury. Snook carried on. “Did you—as a result of talking with Mr. Cosey, did you still have the opinion in your own mind that you that what you were doing was legal?” “I did,” Burton replied. The prosecutor objected again. The judge sustained. Snook kept going. “Did you also contact other—you say you have contacted two different law firms?” “Yes, sir,” Burton replied. “Wait a minute,” the judge said, “all right, now—ladies and gentlemen, step into the jury room for a second.” They did so. “Now, Mr. Snook,” Judge Jackson began, outside the presence of the jury, “the Court has made it very clear that you are not going to have this defendant rely on an affirmative defense of legal advice. And you keep nibbling at, ‘Did you talk to law firms, Did you get legal opinions.’ You have done it a couple of times now, and you are going back to it now. You are, in effect, back-dooring the Court’s ruling by asking him in these questions about did you contact law firms. He’s already exceeded the boundaries of what the Court told him already, and you’re going back to it again. Enough of it. Enough of it.”14 On cross, Hurt tried to play on Burton’s poker prowess, aiming to show the jury that the defendant was a risk-taking gambler, and a high roller. Yet, Burton thought Hurt inflated his prowess, and misunderstood the rules of the game in the process. “Sir, you’re a poker player?” the prosecutor asked. “Yes, sir.” “High-stakes poker?” “Some would say. I know people that play much higher stakes than I play.” “More than a hundred thousand dollars a hand at times?” “No, sir.” “More than a hundred thousand dollars on the table at times?” “Maybe.” “When you say ‘maybe,’ you don’t know?” “I don’t know.”

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“Is that amount of money not of consequence that you don’t remember, or why is it that you don’t remember?” “Well,” Burton explained, “I don’t remember what other people have in front of them to the dollar because it’s not my money. I know how much money I’ve got in front of me but not how much money they have in front of them. A hundred thousand dollars would be about the biggest game aggregate amount of money that I’ve ever played in.” Hurt thought he was onto something. The prosecutor had evidence, texts between Burton and Ben, that he believed showed Burton playing at the World Series of Poker in Vegas, in 2011, with bigger stakes than the witness let on. “Sir, I’m going to ask you to take a look at what’s been marked as Government’s Exhibit 504. These are actually texts from Mr. Galecki’s phone sent to him by you?” “Uh-huh.” “If you would just look at the top of Page 2.” “That’s referring to a poker tournament, sir,” Burton said. “They’re not real chips, not real dollars.” “So you would admit, though, that the implication of that statement is that you are engaged in a very high-stakes poker game?” “No, sir. You have the same amount of chips in front of you in a 10dollar tournament.” “So you deny that those texts refer to tens of thousands of dollars on the table?” “Absolutely. That’s the poker tournament; the chips have no nominal value at all.” Hurt tried another unusual line of attack, with different texts he had between Burton and Ben. The prosecutor moved from poker to Dune, the acclaimed sci-fi series launched in the 1960s, whose fictional universe centers, to some degree, on a substance called “spice.” As it happened, Burton was a Dune fan before he got into the spice business. He read the latest book in the series during breaks in court proceedings (though he didn’t think the Spice brand name had anything to do with the sci-fi tale).15 All of this led to a quirky, Dune-based line of questioning in the federal criminal trial. “What is Arrakis?” the prosecutor asked the defendant.

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“Arrakis is a planet in Frank Herbert’s Dune universe,” the defendant replied. “There were about 20 books, it’s my favorite science fiction series.” “What’s important about Arrakis?” the prosecutor asked. Burton’s answer could only have made sense to people familiar with that fictional world. It also spoiled the story, a bit, for jurors who hadn’t read the books, seen David Lynch’s 1984 film, or would see the next Dune movie when it came out several years later, in 2021. “It’s home of the Fremen and where Paul Maud’Dib was identified as the Kwisatz Haderach, and went on to sire Leto, II, who went on to find the path that allowed humanity to survive the machine war,” the defendant explained. “And what is another name for Arrakis?” “Dune.” “The Spice planet?” “Where Spice is made on that universe—or where Spice is harvested on that universe.” “And there’s a famous quote surrounding that mythology that, ‘He who controls Spice controls the universe.’ ” “That’s right,” Burton replied. “Said by Emperor Corrino, who didn’t control them, either way.” “Mr. Ritchie, I’m showing you what’s been marked as Government’s Exhibit 512. Can you look at Line 8728? That’s a text from you to Ben Galecki, correct?” “Yes, sir.” “And what’s the one word you put there?” “Arrakis,” Burton said. “Incidentally, the reason that was—” “There’s no question for you, Mr. Ritchie,” the prosecutor interrupted. He didn’t intend to follow up or let the witness explain.16 On redirect, Snook asked Burton to finish his answer. “If I recall correctly, I was trying to figure out what to put on a vanity plate on my car. I’ve got another one that says ‘Usul,’ ” Burton said, mentioning another Dune term. “It’s been my favorite science fiction series for thirty years.” “In fact, while you have been in here in odd hours, you have been reading the latest in the Dune series?” Snook asked. “Yes, sir, I have.”

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“When was the first Dune book written?” “Sixty-nine, I think,” Burton replied. The first book was published in 1965. But the defense team might not have thoroughly prepped for that sci-fi line of questioning. “Long before you started . . . in any of this?” Snook asked. “Yes, sir.”17 •

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In addition to poker and science fiction, there was also the analogue issue. The government called a DEA chemist and a DEA pharmacologist, both from Diversion Control, to try to prove the Analogue Act’s structure and effect prongs. They testified that XLR-11 and UR-144 were substantially similar in structure and effect to JWH-018. But even on the government’s direct examination, the law’s subjectivity emerged. “As a chemist—or as a scientist, is that a term that is used in the scientific community?” the prosecutor asked the DEA’s chemical-structure witness, Michael Van Linn, referring to the substantial-similarity test. “The phrase ‘substantially similar’ is not commonly used in the scientific field in the literature, for example, or in practice,” the DEA witness replied. “So is it fair to say that’s a statutory definition, not something you use that you grew up learning in chemistry?” “That’s fair to say, yes.”18 On cross, Snook wanted to know, then, how the government chemist defined the term. “Substantially similar to me means having characteristics that are largely but not entirely or wholly in common,” the DEA witness said. “There has to be a difference between them. So if they were completely identical, it would be the same chemical substance.” Snook also asked Van Linn about Berrier. “Are you aware that Dr. Arthur Berrier of the DEA had a very different opinion as to the chemical structural substantial similarity in March and April of 2012?” “I have heard he had a different opinion, yes,” Van Linn replied. The witness wasn’t working on analogue reviews in 2012.

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“And you are aware, therefore, that he did not feel that they were substantially similar to JWH-018?” “It’s my understanding he came to that opinion, yes.”19 On redirect, Hurt asked the witness, referring to analogue reviews, “Is that forensic part of the house where Dr. Berrier is associated, is that one of their jobs?” “No, it is not,” the witness replied.20 That answer might technically be true, insofar as DEA protocol placed the ultimate analogue authority with Diversion Control. But it’s also true that part of Forensic Sciences’ role was to consult on those determinations. So to say that it wasn’t the job of Berrier’s “part of the house,” without more context, could mislead an outside observer into thinking that Berrier was chiming in on his own, instead of having been asked to do so.21 Of course, the defense called witnesses who said the substances weren’t analogues. Gregory Dudley, chair of the chemistry department at West Virginia University, testified for Burton and Ben. The MIT PhD was one of the witnesses Jim Felman had lined up for the 2012 Fedida hearing in Orlando, the case that led to Berrier’s dissent emerging. Dudley testified in the Smoke Shop case in 2013, on behalf of the Wisconsin business trying to get its spice back. By the time of the Virginia trial, Dudley was wellacquainted with the Analogue Act and the broader issues the scientific and defense communities had with it. He’d become a go-to expert. One thing the dueling witnesses agreed on was the subjective nature of their inquiry. In explaining why he thought the substances weren’t substantially similar to JWH-018, Dudley said, “Similarity is subjective, and similarity assessment is complicated, largely because it cannot be said with certainty if two objects, compounds or any objects, are similar to each other.” 22 Snook asked Dudley if he knew of anyone outside the DEA who thought UR-144 was substantially similar to JWH-018. The prosecution objected before the witness could answer. Judge Jackson sustained. Snook asked Dudley if he knew of anyone inside the DEA who agreed with his view that the substances weren’t substantially similar. The prosecution objected again. Judge Jackson sustained again.23

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On cross, the government went after the fact that Dudley was being paid for his time. “I’m not asking for your State salary, that’s not the issue here,” Hurt said. “But you receive X amount of money from West Virginia; is that right?” “Yes,” the professor admitted. “And you take a certain number of days away from the University every year to do this type of work; is that right?” the prosecutor pressed on. “I—yes. I would characterize it as I consult on the side. And that’s not unusual.” “Okay,” Hurt said. “I’m not taking issue with you, Doctor.” 24 •

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In the end, for all their cooperators, undercover buys, and references to China, the Virginia prosecutors couldn’t clear the vague hurdle that was the Analogue Act. “We are unable to reach a unanimous verdict on any of the counts facing Mr. Galecki and Mr. Ritchie, for the terms substantially similar,” jurors wrote in a note to Judge Jackson. A hung jury.25 Co-defendant Nader Abdallah wasn’t as lucky. The jury convicted him of several charges, including possessing crack-cocaine and making false statements to the government. Judge Jackson sentenced him a year later alongside his son, Sharif, who cooperated. The judge gave Nader sixteenand-a-half years; he gave Sharif eleven.26 The Justice Department ran a press release headlined, “Father and Son Spice Traffickers Sentenced to Prison.” 27 And though Burton and Ben fared better than their co-defendant, they were only so lucky. A hung jury didn’t clear them of charges like an acquittal would have. It put them back where they started, pretrial, facing prosecution in three federal districts. The next move was up to the government. “The Court will await the United States’ determination about what they intend to do; whether you want to reschedule another trial right now or what you want to do,” Judge Jackson told the prosecutors. “We are prepared to reset this for trial, Your Honor,” Hurt replied.28

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Dynamite

The retrial took place in January 2017. Ahead of it, Burton and Ben tried convincing Judge Jackson again to let them tell the jury their story, the way they wanted to tell it. On top of asking him to reconsider his limits from the first trial, they added a more potent request. They wanted to call Arthur Berrier to the stand. Ben’s lawyer, Christian Connell, wrote to the Justice Department, asking for permission to do so.1 He went through the feds because they can try to block their employees’ testimony. The Supreme Court case affirming the government’s power in this regard stemmed from another prohibition era. Roger Touhy, the Chicago mob boss and bootlegger who warred with Al Capone, said he was framed for an alleged 1933 kidnapping that put him behind bars. He subpoenaed the FBI for records which he said would help free him. In 1951, the high court approved the government’s refusal to comply with the subpoena.2 (A judge later vindicated Touhy and he was released in 1959, shortly after which he was killed.)3 Hence the need for Connell’s “Touhy request,” as such a thing came to be called.4 “Dr. Berrier’s testimony is critical to Galecki and Ritchie’s defense,” Connell wrote to DOJ, citing Berrier’s dissent that emerged after the 2012 Fedida hearing in Orlando. “Berrier, a senior research chemist 121

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who works for the special testing laboratory of the DEA’s Office of Forensic Science, opined that UR-144 is not substantially similar in its chemical structure to JWH-018,” Connell wrote. “Clearly, that finding is critical to Galecki and Ritchie’s defense that they were not distributing a controlled substance analogue.” 5 The government denied Connell’s request. Assistant US Attorney Hurt wrote to Ben’s lawyer that “the United States does not believe that the required showing of necessity and materiality has been put forth. In addition, some of the information sought is part of the deliberative process and is therefore privileged.” 6 The deliberative-process privilege lets the government keep employees from testifying or providing records about their work. The thinking is that important government deliberations could be stunted if the deliberators knew their work could be examined in open court. It’s the same legal mechanism that the prosecution in Fedida tried to use to block Cynthia Hawkins’s attempt to learn about internal DEA disagreement. Had the government been successful there, the details of Berrier’s dissent might not have emerged in the first place. Connell pressed on, filing a motion with Judge Jackson, seeking to compel Berrier’s testimony. The defense lawyer complained that the government couldn’t assert the deliberative-process privilege here, because it had been waived. The government already disclosed Berrier’s opinion in prior litigation, like Fedida. So there’s no harm in discussing the chemist’s already public opinion, Connell argued.7 DOJ filed a remarkable response. Virginia prosecutors painted a picture of the analogue-review process that didn’t reflect the reality of Berrier’s role. “Dr. Berrier is a chemist within the Office of Forensic Sciences (‘SF’), the DEA component tasked with conducting forensic analysis of drug seizures to identify what substances or chemicals they contain,” they said in the filing by Hurt’s co-counsel, Kevin Hudson. “In other words, Dr. Berrier works in the portion of DEA that issues the certificates of analysis for seized drugs.” 8 That might have been accurate as to Forensic Sciences generally, but not Berrier’s more-specialized lab. And though it’s up to Diversion Control what to deem an analogue, the thrust of the prosecutors’ argument could mislead a reader into thinking that Berrier wasn’t part of the review proc-

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ess. The response failed to mention, for example, the dozens of Diversion Control monographs Berrier was tasked with reviewing over the years. Yet, even if Berrier was an expert, the government maintained he should still be kept off the stand. The prosecutors said Berrier’s testimony would be “cumulative.” That is, it would be unnecessary, because the defense had other well-qualified, nongovernment witnesses at their disposal, like Professor Dudley. The prosecution further argued that Berrier’s testimony could mislead the jury into thinking he speaks for the DEA. So if Berrier were allowed to testify, the government argued, he shouldn’t be allowed to say where he works.9 DOJ’s final point in its motion was also misleading: that Berrier never rendered an official opinion on XLR-11. “Such an opinion has not been requested in the course of Dr. Berrier’s assigned duties,” the prosecutors wrote. “Indeed,” they claimed, “no one but Dr. Berrier knows what Dr. Berrier’s opinion is regarding XLR-11.”10 That ignored at least two things. First, that XLR-11 is less similar to JWH-018 than UR-144 is—meaning, a chemist who thinks UR-144 isn’t substantially similar to JWH-018 would think the same about XLR-11. And second, that the reason Berrier was never asked to render an official opinion on XLR-11 is likely due to that fact. Judge Jackson ruled for the government again, declining to hold a hearing on the matter. “A hearing will not aid the decisional process of the Court. The Court finds that the denial of this Touhy request is appropriate as it would violate the Deliberative Process Privilege of the Drug Enforcement Agency to grant the subpoena,” the judge wrote on January 6, 2017, apparently referring to the Drug Enforcement Administration. “The subpoena for Dr. Arthur L. Berrier is quashed.”11 That was just fine, as far as Berrier was concerned. He was happy not to be involved either way. The analogue-review process was the part of his job he hated the most.12 The judge also declined to reconsider his rulings from the first trial. So the defendants still couldn’t argue that expert and law-enforcement advice led them to think they were right with the law. •

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Familiar themes reemerged at the January 2017 retrial: Drug dealers peddling poison for big money. This time, though, it was only Burton and Ben at the defense table. Burton testified again, walking this second jury through the steps he and Ben took with lab testing, quarantining, and so on, as well as his meeting with Cosey—to the extent he was allowed to talk about it. “We don’t have to dance here, Mr. Ritchie,” Hurt said on cross, taking stock of the fact that everyone pretty much agreed about what happened. “Really the point of contention, is your view on the legality of this endeavor?” “Yes, sir,” Burton said. He and Ben didn’t contest that they sold the stuff. They contested the government’s notion that the stuff they sold was illegal. “All the other elements of the offense are not—you don’t contest?” “Agreed.”13 Asked by Hurt if he cared what customers did with the product, Burton told the jury it “wasn’t really my concern. I’m a Libertarian. What people do with a legal product is their business.” But if Burton really thought it was legal, the prosecutor wanted to know, why not connect with Walmart to put Zencense spice on their shelves? “I wouldn’t sell to Walmart,” Burton replied. “Walmart, I just wouldn’t do it.” “Why not?” Hurt asked. “Because Walmart’s a pretty predatory company.”14 •

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The defense called Professor Dudley again. He explained to this second jury why he thought XLR-11 and UR-144 weren’t substantially similar to JWH-018. The prosecution crossed him again on how much money he made from expert testimony. Hurt elicited from the professor that he raised his hourly rate over the years from $250-an-hour to $500. On redirect, Snook asked Dudley when he first gave his analogue opinion on the substances at issue. It was back in 2012, at the time of the Fedida hearing.

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“Has your opinion changed in any way based on the amount you were being paid?” “No.”15 •

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This second jury, too, was stuck on the analogue issue. It sent Judge Jackson a note during deliberations. The judge read it aloud in court: “ ‘We are basically hung on Count 1,’ substantially similar.”16 They were headed for another hung jury. Another mistrial. Judge Jackson didn’t like that. “This is the second time around on this case,” the judge told the lawyers. “I’m bringing them back in here for an Allen charge, that’s exactly what the Court’s going to do.”17 By “Allen charge,” the judge meant he’d try to break the stalemate. The term comes from an 1896 Supreme Court case, Allen v. United States. “It cannot be that each juror should go to the jury room with a blind determination that the verdict shall represent his opinion of the case at that moment, or that he should close his ears to the arguments of men who are equally honest and intelligent as himself,” the high court said in the vernacular of the day. An Allen charge is also known as a “dynamite charge,” seeking to blow up the jury’s impasse. It’s been criticized as coercive. Some jurisdictions have banned it.18 With jurors assembled in the courtroom, Judge Jackson read the Allen charge. “A new trial would be expensive for both sides,” he explained. “There is no reason to believe that another jury would do a better job. It is important that a unanimous verdict be reached and each juror who finds him or herself in the minority shall reconsider his or her views in light of the opinion of the majority. And each juror who finds him or herself in the majority shall give equal consideration to the views of the minority, because being in the majority does not necessarily make one right.”19 The charge worked. An hour later, the jury had a verdict. Burton was up first. “Mr. Ritchie, will you please stand and face the jury?” the clerk asked the defendant: “In the United States District Court for the Eastern District of Virginia, Newport News Division. United States of America versus

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Charles Burton Ritchie . . . . We, the jury, find the Defendant, Charles Burton Ritchie . . . With respect to Count 1, conspiracy to distribute and possess with intent to distribute controlled substance analogues: Guilty.” And so it was for Ben too.20 Next, they faced Judge Jackson at sentencing.

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Worse Than Crack

Some of Kevin Pollak’s best-known roles have come in legal-crime dramas like A Few Good Men, Casino, and The Usual Suspects. Less known is the bit role he played in Burton Ritchie’s real-life saga, writing a character letter to Judge Jackson. Burton’s conviction devastated Pollak, who appreciated Burton as both a producer and a person.1 “The fact of the matter is,” the actor wrote to the judge, “since the first time I met Mr. Ritchie, I’ve admired and respected that his thoughtfulness and consideration of others constantly outweighed his personal and professional needs and/or desires. On the multiple occasions that I’ve been in the company of he and his children, for example, I have always observed a level of love, devotion and generosity of time that I question myself capable of.” Pollak ended his letter, “With rehabilitation available in today’s society at its most varied and successful in history, it seems an injustice to incarcerate an otherwise remarkably intelligent, respectful and thoughtful citizen.” 2 Pollak’s letter wasn’t the only one from the entertainment realm. A bunch of Ben’s letters came from the Pensacon world. One of them recounted 2015’s festival, which was set to feature the character actor Robert Z’Dar, known to fans of the cult-classic horror series Maniac Cop 127

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for playing Officer Matt Cordell. Z’Dar arrived in the panhandle in poor health. He died there. Before he died, Ben helped care for him. “Ben took it upon himself to become a contact for the medical team,” wrote a woman who was there working for Z’Dar, “and did everything in his power to ensure that Robert’s case was managed properly, and that he knew he wasn’t alone.” Another Ben letter, from a Pensacon volunteer who happened to be in law enforcement, told the judge she was “struck by Ben’s driving purpose of the convention not being to make money for himself, but to showcase our town and bring economic growth to the entire area.” A film-industry friend wrote that it’s “now plain to see that the concept of Pensacon is the truest representation of Ben Galecki’s character. He is a dreamer and a seeker who has tirelessly sought to share his compassion in fostering in other individual[s’] desired creativity.” 3 The President of Pensacola’s SouthBARK Animal Rescue lauded Ben and his wife Ashley’s generosity in fostering dogs and donating to the group. “Once Ben was part of the SouthBARK family and realized how desperately we relied upon donations for our operations, he quickly began to help us financially through his involvement with Pensacon, as well as personal donations when he saw a specific need arise,” the head of the rescue effort wrote. “To this day, SouthBARK continues to be a recipient organization for much of the fundraising by Pensacon.” Another writer told Judge Jackson she never heard Ben raise his voice, “unless that person was guilty of abusing an animal or attempting to take advantage of a weaker person.” 4 There was also the more-typical friends-and-family fare. “As a single parent, I have loved and supported him his whole life,” Burton’s mom, Linda, wrote of her son. “My support has not been blind.” She noted her refusal to bail him out in 1990, instead helping him into a pretrial diversion program. Linda explained that his father “was rarely encouraging and only marginally involved in Burton’s life.” Her son “has always strived to be a better father than his was,” she wrote. Linda detailed Burton’s dedication to recovery, both his own and others’, and how he “cares about his fellow man.” That theme echoed in writings from friends that Burton helped when they were down, whether in buying diapers for a newborn baby, donating school supplies and clothes to kids with special needs, or supporting new arrivals in Narcotics Anonymous.5

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Ashley, too, wrote to the judge who would sentence her husband. “I want more than anything to make Ben a dad,” the woman in her early 30s confided. “I want so badly for him to instill his values and intelligence in our children. We probably would have procreated by now,” she revealed, “but we were hearing whisperings of possible indictment so we decided to hold off. We didn’t want to bring a child into a broken, tumultuous environment. I still feel hope that we will be able to make this dream come true. . . . I realize we are at your mercy, so I am asking for it. . . . I am begging for your mercy.” 6 Ben’s father, a military man, took a different approach. “I spent over twenty years serving my country in the United States Navy believing that I was supporting ‘truth, justice and the American way!’ ” Leon Galecki’s letter began. “Excuse the quote but I was raised on Superman, Leave it to Beaver, Father Knows Best,” he wrote. “How can it be that my son is charged with a crime and not be allowed to submit every piece of evidence that would help prove his intent, guilt or innocence? Isn’t this that same country that I spent over twenty years defending? This all sure makes me question our legal system and the rights of our people.” 7 David McGee also called the prosecution into question. Writing to the judge who kicked him off the case and kept him off the witness stand, McGee blasted the Justice Department for betraying the principles he once fought for. “If indeed the government believes ZIW’s products to be dangerous,” the former prosecutor wrote, referring to Zencense, “they could have put ZIW out of business with a few simple words instead of an expensive prosecution. Having failed to do so, the government bears significant responsibility for what ensued.” 8 Burton and Ben would have the chance to speak for themselves at their May 31, 2017, sentencing. As would Judge Jackson. •

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“A drug kingpin in the true sense of the term” is how Assistant US Attorney Hudson described Burton at the sentencing hearing. “Not only is this defendant the top spice distributor and manufacturer in this case, during the time period in question, he was one of the foremost spice distributors and manufacturers in the world,” Hudson claimed. “In an 8-month period,

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he sent nearly a ton of spice just to two stores in the Eastern District of Virginia alone. And this is a defendant whose spice business stretched across the country. In an 8-month period, he and his co-defendant, Ben Galecki, pulled in over $20 million in spice proceeds.” 9 Burton wasn’t only a kingpin, the prosecutor said, but a kingpin “in an emerging area of the drug market that’s harder to detect, harder to combat and I’d submit that, for sentencing purposes, that cuts against him, not for him.” As for the defendant being in recovery while selling spice, Hudson said it’s extraordinary that “someone who knows what it’s like to be an addict simply would not care that he’s helping to create new addicts.” The prosecutor conceded that Burton “is certainly a little more wily, perhaps, than the average drug dealer, but less culpable? No. More culpable, I would submit. So thinking about all the factors that I’ve just outlined, I’d submit that for a drug kingpin a drug kingpin sentence is deserved. And that sentence, I would submit, is 384 months.”10 Thirty-two years. Burton was forty-six. Shooting for a much lighter sentence, Lloyd Snook pointed out that some of the prosecutor’s claims weren’t supported by evidence. “Mr. Hudson goes on to talk about how he was distributing to countless shops. They are not countless, they just haven’t bothered to count them,” Snook said on Burton’s behalf. “Mr. Hudson goes on to say, well, he’s created far more addicts. We don’t know that,” the defense lawyer said. “Mr. Hudson would have us believe that it was simply a matter of Mr. Ritchie being so wily as to contact Mr. Cosey and somehow pull the wool over Mr. Cosey’s eyes so that no charges got brought. He was somehow so wily as to contact one of the preeminent firms in the area and to take their advice and to go with their advice, and that that somehow is a problem, that he’s relying on expert advice.” Snook asked Judge Jackson to impose a sixty-month sentence. Five years.11 Before the judge told everyone what he thought of that request, Burton joined Snook at the podium to plead his case. “You may make a concise allocution,” Judge Jackson told the defendant. “It will take about two-and-a-half minutes, Your Honor. Is that okay?” “That’s fine.”

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“Okay. Judge Jackson, thank [you] for your diligence and patience throughout this long and trying process,” Burton began. “Now, I beg the Court’s indulgence for just a couple more minutes. I’ve read the government’s sentencing position and I have to say that the man that they describe sounds like a very bad man. Conversely, I know Your Honor has received a lot of letters that paint a completely different picture. I wanted to let the Court know how I see myself, and that is, first and foremost, as a father. When weighing to open Zencense, one of the biggest factors was that I wanted to make enough money to be able to walk away from the Psychedelic Shack, a business that I had owned for many years and that no longer represented my core beliefs. I wanted my kids to see daddy go to work at a business that he was proud to go to. The government’s position is that I created an empire as a drug kingpin and I have no morals. I do have morals, they just were founded on a belief that if I told the truth, I would be okay, and have the opportunity to continue to become a better person. I learned this in Narcotics Anonymous and it has not served me well in this particular instance.” He swore to the judge “as a father” that, if he was told he was breaking the law, he “would have stopped instantly.”12 Knowing that Judge Jackson would give him a stiff prison term, Burton closed by asking for geographical mercy. “Being able to serve my time in Pensacola or near there, will allow me the greatest opportunity to see my children,” he said. “It will also allow me to have support from the Narcotics Anonymous area where I got clean, the church where I was raised in, as well as access to my therapist, who I believe also wrote you. Likewise, I haven’t been able to see my children in over four months. Your Honor’s assistance in asking the Marshals to expedite our transfer process to prison would help me to be able to see my children as soon as possible. Any such help would be a blessing of the highest order. Thank you.”13 Next, Judge Jackson addressed the defendant, making more explicit his view of the case—and of Burton. “The truth is that you were involved in one massive drug-dealing operation,” the judge began. “You may not look at it as drug dealing, but it’s drug dealing; sophisticated drug dealing. Surely you were not standing on the corner flipping capsules to people or slipping around in the dark dealing cocaine. You were doing it in an open, sophisticated way which did not permit your customers to understand the nature of what they were getting

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into; that they were doing things that adversely affected their health.” Burton’s operation, Judge Jackson observed, “is far different from the average street corner crack dealer, and I know you do not like to be compared to street corner drug dealers, but it’s worse.”14 Burton’s maintaining of his innocence further hurt him in the judge’s eyes. “When we look at what you have done,” Judge Jackson continued, “what is very clear, you have not accepted responsibility yet for the nature of what you are doing.” He didn’t buy Burton’s legal-advice defense; he thought Burton used the law as a shield for criminal activity. The judge called him “a clever, corrupt drug dealer who made millions of profits from this episode, corrupted other people, destroyed other people’s lives, got other people in prison, all because of your dealings.” In his long career as a judge and prosecutor, Jackson said, he “has seldom seen a drug operation as massive and as organized as what you had going.”15 Recounting Burton’s biography, the judge noted, “You are 46 years old, born in Alabama, only child. Resided with your mother after the divorce of your parents. You say you had minimal contact with your father, but you had a lot of the things that young men get involved in; Boy Scouts, theater in school.” Of Burton’s fatherly concern, the judge said he wondered “just how much did you think about your children when you were committing these criminal offenses. Did you think about the likelihood that you might be incarcerated some day and you wouldn’t be around for them?” Taking stock of Burton’s successful film career, the judge said it’s a “shame you didn’t stay in that from the beginning.”16 The jurist known for calling out sentencing disparities, like in the Kimbrough case that went to the Supreme Court, made clear that Burton’s prison term had to align with others on the indictment. Meaning, Burton’s term had to be higher than the ones Judge Jackson imposed to that point. “Nader Abdallah received 16.5 years. His son Sharif Abdallah received 11 years. Jayson Mickle, who had a little shop down here in this part of the country operating got 17.5 years. . . . Those are the highest ones,” the judge recalled. “You’re nowhere in that range, so you shouldn’t be sentenced in that range and you will not be sentenced in that range and it will not be a disparity,” he said. The judge called Snook’s five-year request unrealistic. It would be “an outrageous affront to justice to give you sixty months in this case,” he said. “Total abdication of judicial responsibility to

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give you sixty months. The Court cannot do that; the Court will not do that.”17 At the same time, the judge was mindful that following the sentencing guidelines could put Burton away for seventy-nine years. “That would be an outrageous sentence,” he said, expressing his view that “in recent years the courts have too frequently, under the guidelines, sentenced people to prison for drug offenses that are just plain inhumane and disproportionate.”18 Not even the government was asking for a sentence that high. But the judge gave the government the sentence it wanted for the spice kingpin: Thirty-two years.19 Not necessarily a life sentence for the forty-sixyear-old, but not far from it. •

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When it came to Ben, the prosecution acknowledged his raft of glowing letters. But, to the government, those tributes simply reinforced the façade that was Burton, Ben, and their drug empire. Assistant US Attorney Hurt pointed out that the defendants didn’t brag about how they made their money. “ ‘Oh, yeah, my job, how I made this money that I can put on Pensacon, that I can have a music company, you know how I made that money? By selling gram packages of drugs to drug users. That’s how I got my money,’ ” the prosecutor said. “And so you can be a nice person to the people around you and still do horrible things, and the Court sees that and we all see that time and time again.” Hurt wanted thirty years in prison for Ben, two fewer than the government requested for Burton. Ben was forty-two.20 Returning to the poker theme, the prosecutor recalled that “Mr. Ritchie was a big poker player. And so when you are dealt a bad hand, when DEA raids your facility in Las Vegas, what do you do? You double down. And that’s what he did, and that’s what Mr. Galecki did. And so the protestations that they were engaged in completely legal behavior, that we were consulting attorneys and they told us this and they told us that, that’s just part of the façade, Your Honor. That’s part of the Potemkin village they built on either side of this corrupt and unlawful organization which was distributing poison. And no matter how many times you say it’s legal, that doesn’t change the fact that you’re a drug dealer dealing poison.” 21

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Ben’s lawyer, Christian Connell, reminded the judge of the evidence kept from the jury—especially Arthur Berrier’s testimony. “The first jury hung on that issue and the second jury briefly hung,” Connell said, referring to the Analogue Act’s substantial-similarity test. But the judge wasn’t interested in rehashing his evidentiary rulings.22 The defense lawyer also sought to distinguish Ben’s convictions from more serious ones that nonetheless called for lower sentences under the guidelines (at least for defendants who plead guilty)—like having fortynine kilos of coke and a gun; robbing a bank of over $5 million and firing a gun; forcing a sexual act on a child under sixteen; second-degree murder; aircraft piracy; and selling or buying a child for use in production of pornography.23 Connell argued that Ben’s crime was “by no means as bad or as culpable or as deserving of punishment as selling a child for use in production of pornography.” A thirty-year sentence for the forty-two-year-old “is basically a life sentence,” Connell contended: “Mr. Galecki is not deserving of a life sentence. He is a good man. He’s a good man, Your Honor, and we would ask for a sentence of eighty-four years—eighty-four months—excuse me, eighty-four months, Your Honor.” Seven years.24 The parties were a bit closer to one another than in Burton’s case, but still on different planets. Ben addressed the judge, too, joining Connell at the podium. He struck a more remorseful tone than Burton. “If you think that I don’t feel shame every time the harmful effects are brought up, you would be mistaken,” he told Judge Jackson. “And I should have thought through it more, I should have, but I didn’t. And in the years since then, yeah, I’m absolutely ashamed of it. And that’s one thing that Eric Hurt got right. The people that I talked to, you know, after that, no, I didn’t tell them how I made my money, because I was ashamed of it. But, back then, it just wasn’t known in 2012 about the harmful effects.” 25 Like Burton, Ben asked for leniency in where he would serve his time. “Now, sir, I am going to ask for one mercy and this is as much for me as it is for my wife. I know that the BOP has final say on any classification and placement, but they will take recommendations from you,” he said, referring to the Bureau of Prisons. “I ask that you recommend that I’m placed as physically close to Pensacola as possible, for it is a big save if I can get as physically close to Pensacola as possible. That would allow my wife to visit me on a semi-regular basis. As I’m sure you know, something like this

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is very difficult on a marriage, and then those visits would do us both a lot of good. . . . I don’t want her to have to drive long, long hours and into the night, because, you know, like all husbands, you know, I worry.” 26 Despite Ben’s remorse, Judge Jackson’s response mirrored the scolding he gave Burton. It was an even stronger scolding, in some respects, for Zencense’s 20 percent owner. “You were involved in basically a massive drug-distribution network,” he told Ben. “Perhaps you do not consider analogues or spice to be drugs, but it’s a massive drug distribution network, covering over four states, involving over 300 employees; a drug operation that netted significant profits in the millions of dollars. A drug operation that pulled in co-conspirators in multiple states. A drug operation that resulted in the conviction and destruction of the lives of other people. A drug operation that certainly had an impact, adversely, on the community.” 27 Like he told Burton, the judge said he didn’t buy the story that they tried to comply with the law. “I’m talking about the conspiratorial nature of Mr. Ritchie’s statements that are really attributable to you because you were involved in making this poison,” he said. “You were one of the chief operators in the back room making sure it’s mixed right, it’s packaged and et cetera. So in your own way, you are worse than Mr. Ritchie because you were doing the dirty work for him and with him, and that’s why you need to understand what your role is.” Judge Jackson likewise chided Ben for not doing more with his potential. “The Court’s read your background, Mr. Galecki. Clearly you had the capacity to do something different, even though you didn’t. Forty-two years old, well-provided for as a child, raised by both parents until you were nine, at least. You said you had limited contact with your father, but your parents are in Alabama and Memphis. . . . You’re married 2012. You’ve been an active member of the Pensacola community. . . . You were capable of doing positive things, which you did do but you managed to get into this operation.” Noting Ben’s post-Zencense success in film and entertainment, the judge said “it makes no sense at all. Just a waste of potential.” He asked, referring to Burton, “Had you not helped him produce these products and put this poison on the street, what would have been the impact in the lives of other people in your own personal life? Was the money worth it? Maybe it was.”

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Ben shook his head.28 “But those are things that you have to think about,” the judge said. “Your counsel has asked for eighty-four months. Eighty-four months would be inequitable in this case when the Court considers the nature of the conduct you were involved in. This was no small-fried operation that you were involved in here. The Court told you—outlined what it was in the beginning. The government asked for thirty years as an appropriate sentence in this case. When you add up the guidelines, they come up with something like seventy-nine years, which the Court said is outrageous. So the Court, by no means, would impose such a sentence. I mean, because the math just doesn’t line up with the reality of what we’re confronted with. The Court understands you are forty-two years old, Mr. Galecki, but your crimes are just too heinous in this case for the Court to give you a sentence of seven years. Just cannot do that. Just cannot do that. Maybe I should rephrase that. The Court could but the Court will not.” 29 Judge Jackson gave Ben twenty-eight years. Two shy of what the government asked for. Like he did for Burton, the judge recommended that Ben be locked up as close to Pensacola as possible. “Thank you,” Ben replied.30 •

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In a typical case, convicted defendants would next focus on their appeal. Burton and Ben had to worry about that too. But they also faced trials on their other indictments, in Nevada and Alabama. Virginia convictions didn’t stop the government from pressing forward. The defense would have to fight on appeal while prepping for the next trial, out West in Nevada. At the center of the Virginia appeal was Arthur Berrier. Among their arguments at the Fourth Circuit was that Judge Jackson irrationally kept the DEA chemist off the stand. And in the meantime, they hoped their next judge, in Las Vegas, would let Berrier testify, to give them better odds at only having to deal with one set of convictions and decades-long sentences. That spring of 2017, analogue defendants saw what can happen when they call Berrier to the stand. Federal prosecutors in Kansas failed to keep

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the government chemist’s testimony from the jury. The judge there, Daniel Crabtree, understood that a DEA expert disagreeing with the DEA is a gamechanger. “The government plans to call DEA expert witnesses to testify that substances listed in the indictment—including UR-144—meet essential components of the statutory definition of a controlled substance analogue,” Judge Crabtree wrote in a pretrial ruling. “Defendant is entitled to question a member of the same agency who, it appears, may have dissented from that opinion about a substance placed at issue by the indictment.” 31

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The Defense Calls Arthur Berrier

“I am a senior research chemist at the Drug Enforcement Administration,” Berrier told the Topeka, Kansas, jury.1 He was testifying in a spice case involving what the government called the “exotic” brand names of Pump It, Head Trip, Black Arts, Grave Digger, Voodoo Doll, and Lights Out.2 “So I want to turn your attention back to 2012,” defense lawyer Branden Bell directed the DEA witness at the March 2017 trial.3 “As part of your job at the Drug Enforcement Administration in the Forensic Science division, would you be asked to evaluate what are called monographs?” 4 Berrier said yes. “We were asked to review the structural similarity prong,” he explained. “We” being Forensic Sciences, asked by Diversion Control. Bell then sought to introduce the emails between Diversion Control and Forensic Sciences that emerged in the 2012 Fedida case in Orlando. The prosecutor objected.5 “Although these documents are out in public, they are not out in public because we released them willingly,” Assistant US Attorney Tanya Treadway said.6 “The DEA was compelled to produce them in the Fedida case, and they have since circulated in the defense bar and have become a 138

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part of a federal defender’s handbook,” she said. “We have not waived the deliberative process privilege and we continue to assert that. And we also continue to assert all the relevance objections that we raised, and we believe this is collateral impeachment that is not material to the issues in this case.” Judge Crabtree overruled her objection.7 “Chemically, they are not the same,” Berrier said of UR-144 and JWH018. “And, obviously, structurally they don’t look the same. They are not the same. They don’t have to be identical for two molecules to be structurally similar, but they need to be—they need to be more common than what you see here.” 8 “Did you discover despite your opinion on the structure, that ODE placed it on their analogue list anyway?” Bell asked, referring to Diversion Control. “I believe I found that out later, yes.” “Okay. Are you familiar with a substance titled—that goes by the name XLR-11?” “Yes, I am.” “Dr. Berrier, were you ever asked to render an opinion regarding the similarity of XLR-11 to JWH-018?” “No.” “Does your division, as far as you know, still consult with ODE regarding structural similarity comparisons?” “No, I don’t think we do.” “Do you know when that process stopped?” “I’m not sure.” “Was UR-144 and JWH-018—was that the last opinion you gave regarding the structural similarity?” “Yes.” “So after you gave this opinion, you weren’t asked to give another one?” “I haven’t been tasked anymore, no.” 9 Over the government’s objection, Bell also called the head of Berrier’s lab, Jeff Comparin, to the stand. The defense lawyer wanted to know when Diversion Control stopped asking for Forensic Sciences’ input. Referring to Berrier’s UR-144 dissent, Comparin said, “It seemed to me, shortly after this instant incident, they stopped reaching out to the Office of Forensic Sciences for an opinion on structural similarity.”10

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On cross, Treadway asked Comparin if he got “the impression from defense counsel’s questions that he’s implying that there’s something nefarious and clandestine going on at the DEA?” “That could be a perception, yes,” Comparin said. “And is he implying that someone at the DEA is trying to silence Dr. Berrier?” “That could be a conclusion. But I don’t profess to know what he’s— what the motivation is.” The prosecutor’s questions made the defense sound conspiratorial. But the DEA’s analogue-review process was clandestine, and the government didn’t want Berrier testifying. Bell asked for a sidebar.11 “Your Honor,” he said to Judge Crabtree, outside the presence of the jury, “I think that, given the cross-examination, I’m entitled to ask him if he knows that DEA and the Department of Justice didn’t want Arthur Berrier to testify. Her question to him was: ‘Did Mr. Bell imply the DEA is trying to silence Dr. Berrier?’ I think that opens the door.” “I’m not going to permit that,” the judge said. “There are a variety of perfectly legitimate reasons in the law why the DEA would take that position. And while I ended up not agreeing with the position they took on several fronts, I think that puts the jury in the middle of the administrative laws of the United States, and that’s no place for them to be.” “Fair enough,” Bell replied. But even though the defense lawyer called for the sidebar and was rejected, the prosecutor, Treadway, had an issue to raise. “And, Judge, you know what? I move to strike,” she said. “I move to strike Dr. Berrier’s testimony and I move to strike Mr. Comparin’s testimony. It’s completely irrelevant and it is collateral impeachment. The purpose for bringing these witnesses in was completely collateral and completely improper under the law that you’re going to direct the jury to use. It’s the jury’s job to determine whether this is an analogue or not.” Judge Crabtree didn’t strike the testimony.12 The jury sided with the defense, rejecting the analogue charges. After trial, the government tried to keep the transcripts of Berrier and Comparin’s testimony sealed. Judge Crabtree declined to do that.13

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Berrier changed the analogue game. Federal prosecutors generally had the upper hand in any case they brought. But with Berrier, the balance of power shifted to the accused, if only in this weird subset of synthetic prosecutions. Defendants had one of the government’s own on their side, just a subpoena away from blowing up any case involving the substances he reviewed. That balance shifted back in the government’s favor when Berrier became a criminal defendant himself, a few months after he helped secure the analogue acquittal in Kansas. In June 2017, he was one of several men in the Northern Virginia suburbs arrested in Operation Safe Summer.14 However improbably, the synthetic-drug war was forever altered by a Craigslist posting titled, “Daddy is home. –m4w (Dulles).” An account claiming to be a teenage girl responded to the sixty-two-year-old’s overture. Following an exchange of sexually explicit messages, they agreed to meet at a bowling alley in Fairfax County. When the DEA chemist pulled into the parking lot, a detective was waiting. According to the lawman, Berrier claimed he was there playing Pokémon Go, the augmented-reality game where people travel in the real world to catch virtual creatures.15 Berrier faced criminal-solicitation charges in Virginia state court. 16 The incident effectively ended his government career. For analogue defendants, it tainted their new star witness. •

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While the organic-chemistry PhD unraveled, Jim Felman fought his latest battle in the analogue war. Upping the ante in a Texas case, the Florida lawyer alleged the government was engaged in “ongoing, nationwide, pervasive, and egregious” constitutional violations and deception. After the 2012 Fedida case that exposed DEA dissension in the wake of Operation Log Jam, Felman became a go-to lawyer in the unusual world of analogue prosecutions. He lectured on how to fight them. That made him an easy choice as counsel for a popular head-shop chain facing financial ruin and life-in-prison for its proprietors.

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The Gas Pipe found itself in a thirty-two-defendant spice indictment in 2015. Dallas federal prosecutors alleged a “massive synthetic drug distribution conspiracy,” painting a picture similar to Zencense and other industry players. (The Gas Pipe was one of the head shops Zencense distributed to.) “To perpetuate an illusion of legality surrounding their ‘spice’ distribution,” prosecutors alleged, the business “marketed and sold these products to the general public throughout Texas and New Mexico as ‘herbal incense,’ ‘potpourri,’ or aroma therapy products, claiming these products were ‘not for human consumption.’ ”17 Felman knew the government had tried, unsuccessfully, to stop Berrier’s UR-144 dissent from emerging in Fedida, and that other information trickled out from the DEA in the meantime, however begrudgingly. He thought there was more to expose. Ahead of trial in 2018, he moved to force the government to disclose more information about its analogue-review process. His motion captured the synthetic state-of-play, at least from the defense vantage. Felman argued that the case “presents this Court with a chapter in an ongoing, nationwide, pervasive, and egregious Brady violation.” He wrote that Diversion Control chemists seek to “imprison defendants for that which is not unlawful while concealing voluminous evidence” that Forensic Sciences disagrees with Diversion Control. Felman compiled affidavits from defense lawyers around the country who sought discovery in analogue cases but were kept in the dark. That included the Kansas case where Berrier helped secure the analogue acquittal. Some defendants on that Kansas indictment had pleaded guilty to counts that referenced JWH-250, one of the substances Berrier didn’t think was an analogue. But the lawyers for those defendants didn’t learn about the dissent until afterward. The Kansas US Attorney’s Office wrote them a letter apologizing but maintained that it didn’t change the outcome.18 Felman’s latest quest caused the government to give up yet more analogue information, again begrudgingly. The 2018 hearing in Texas let the Florida lawyer question several DEA chemists about their review process. Among the witnesses was Diversion Control’s Terrence Boos, who by then was chief of the Drug and Chemical Evaluation Section, the group responsible for analogue decisions within the DEA. Felman took Boos back to their first meeting, at the 2012 Fedida hearing in Orlando, pushing the witness once more on what the lawyer saw as a tension in his prior testimony.

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“And in that hearing, you expressed to me that everyone in your shop agreed with you about UR-144 and XLR-11?” Felman asked. “Yeah, collectively, within the Office of Diversion Control, our section, yeah, we were in complete agreement as to—” “And that’s what you told me under oath in December of 2012?” “That is correct.” “And then we met again a few months later in February of 2013 in Milwaukee?” “That is correct.” “And at that time I asked you a little more pointedly, are you telling me that no one within the DEA expressed any doubt or disagreement about UR-144, and you said not that you know of.” “Yeah. At that time I wasn’t aware of any disagreements.” “And it’s been your testimony and your position that you had no idea that anybody at the DEA disagreed with you about UR-144 until at least May of 2013?” “That is correct.” “And you’re under oath on that position as well—” “Yes, that is correct.” “—in various proceedings around the country. So if there were a document that showed that, in fact, Diversion Control was told in April or May or June or anytime during 2012 that Forensic Science disagreed about UR-144, that would be inconsistent with your sworn testimony?” “It would be,” Boos said.19 The Gas Pipe hearing didn’t produce a document along those lines (though the Fedida prosecutor’s 2013 letter recapping the DEA’s UR-144 review, combined with the emails disclosed in that case, already suggested Diversion Control knew about Berrier’s dissent in 2012). But it did produce testimony from a Forensic Sciences witness, David Rees, that cast more doubt on the notion that Diversion Control didn’t know about the dissent. Felman pointed to the last email in the chain turned over in Fedida, where Diversion Control’s Wong told Rees in 2012 that she received his voicemail and would call him. “Is there any question in your mind that you had that conversation with her?” Felman asked Rees at the 2018 hearing in Texas. “I believe that we had that conversation,” Rees replied.

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“And in your conversation you would have clearly conveyed to Ms. Wong that Diversion—that SF—that Forensic Science does not agree with them about UR-144?” “Correct.” 20 •

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The Gas Pipe hearing also caused the government to turn over copies of internal analogue lists that it had tried to keep from defendants and the public. But the Texas prosecutor, Chad Meacham, argued that those lists shouldn’t leave the courtroom. “It’s important to note, I think, Judge, why these documents should not be released into the public and why I’m requesting the Court to tell these Defendants today, even though they have the documents, that cannot be shared with anybody outside this case,” Meacham said at an August 2018 hearing. “If this list was published, the Defendants could tinker with their drug and they could use this list to say, ‘My substance is not banned. It’s not an analogue; and, therefore, it is completely legal.’ ” He said the list “is internal for use by law enforcement when we decide to bring prosecutions. The public is not entitled to this.” 21 Felman replied that he and the prosecutor “have a different understanding of the role and function of the criminal law. My belief is that the public should be entitled to know what substances the Government believes are unlawful.” He said “the idea that we have to hide from the public what substances are believed to be unlawful so that we can trip people up when they accidently sell them is not a concept that I’m familiar with in American jurisprudence.” The analogue list, Felman said, “should be made public every day, as far as I’m concerned.” Meacham, a career prosecutor on his way to becoming the US Attorney for the district covering Dallas, said that would “give bad guys a road map how to do their job better and would give defendants who are selling this stuff and causing deaths in this country an argument that they are not entitled to.” 22 Ultimately, the prosecutor failed to keep the lists under wraps. It doesn’t appear that his concern of bad guys using them as road maps has

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come to pass. Still, the government would resist disclosing any analogue lists in the future.23 •

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Felman didn’t call Berrier to the stand at the 2018 Gas Pipe trial in Dallas. Instead, the lawyer called an untainted witness, Berrier’s former boss Comparin, to testify about his former star employee’s view. Comparin’s testimony provided the latest evidence that Diversion Control knew Berrier disagreed about UR-144. “Did you consider Dr. Berrier your lead chemist on synthetic cannabinoids?” Felman asked Comparin. “I did.” Felman asked if Berrier thought that UR-144 wasn’t substantially similar to JWH-018. “That is correct.” “And that was conveyed to you?” “That is correct.” “And you conveyed that to the Office of Forensic Science as the opinion of your lab?” “Yes, I did.” “And your understanding is, again, that that was conveyed from Forensic Science to Diversion Control as the opinion of the Office of Forensic Science?” “There’s not a written email trail of transmittal of that information, but I believe that information was conveyed to the Office of Diversion Control,” Comparin said. Felman asked if Forensic Sciences received any further requests from Diversion Control to review substantial similarity after Berrier’s UR-144 dissent. “We did not.” 24 On cross, Assistant US Attorney Meacham asked Comparin, regarding Berrier, “You know in the summer of 2017 he was placed on administrative leave without pay while he was under investigation for alleged improprieties. You’re familiar with that?”

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“Yes, I am.” “And while that investigation was pending, he retired from DEA earlier this year in 2018.” “That is correct.” 25 •

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Whatever intrigue that shadiness sparked in Dallas jurors’ minds, it wasn’t enough to convict on analogue charges in the case that earned Felman the nickname “Mr. Analogue” for his proficiency in this obscure area of the law.26 It could be said that Berrier’s view helped the defense in that case despite him not testifying. Or, perhaps, because he didn’t testify. With their Virginia appeal looming, Burton and Ben hoped the Fourth Circuit would agree that the choice to put Berrier on the stand—which would have been before his arrest, anyway—should have been theirs to make.

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Their Kind of Person

Some judges play devil’s advocate. Their questions at oral argument suggest they’re leaning one way, but they come out the other way. That can make predicting case outcomes difficult based on argument alone. But the judges assigned to Burton and Ben’s Fourth Circuit panel in Richmond— all three appointed by George W. Bush—were clearly skeptical of Judge Jackson’s move to keep Berrier off the stand. “Why don’t you take a minute now and tell us about Dr. Berrier,” Judge Steven Agee told Ben’s lawyer, Christian Connell, at the May 2018 argument. “Tell us very succinctly why it’s material.”1 “Any trial lawyer in the world will tell you that they would much rather have called Dr. Berrier, who could not have been attacked being a liar-forhire,” Connell replied. “Is your point he is a different status witness and the others were attacked for being hired guns?” Judge Dennis Shedd asked. An aggressive questioner, Shedd was a controversial nominee to the appeals court in 2002, overcoming opposition by civil-rights groups.2 His promotion from a South Carolina district-court seat was backed by home-state senator Strom Thurmond, the Republican judiciary-committee chair for whom Shedd worked during the Reagan era that produced the Analogue Act.3 147

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Yet, Shedd apparently agreed with Connell’s point; he just didn’t like the way the lawyer put it. “And this is a government person, their kind of person,” the judge wanted to hear Connell say. “Is that the argument?” “That’s exactly the argument,” Connell agreed. Burton’s lawyer, Lloyd Snook, mentioned another witness they wanted to call but couldn’t: Claude Cosey. Snook cited the familiar Gorsuch passage, or some freestyled version of it. “To quote then-Judge Gorsuch in the Makkar case, there is no stronger evidence of a—basically an innocent state of mind, that you go to law enforcement, you show ’em what you got, and you ask them, ‘Are we okay?’ ” The Burton/Cosey meeting happened before the start of the conspiracy alleged in the Virginia indictment, Snook reminded the judges. So it wasn’t an after-the-fact thing, in the defense’s view. In response, Assistant US Attorney Eric Hurt’s argument reprised the government’s theme from the trials: The steps the defendants took to vet their spice served as proof they were breaking the law; their purported efforts to comply with the law were, in fact, efforts to skirt it. “But aren’t they entitled to have testimony to the contrary presented?” Judge Shedd asked. “Why wouldn’t they be entitled to have contrary information they had and then the jury can decide?” Burton was allowed to testify, Hurt said. “I’m talking about other witnesses,” Shedd pressed the prosecutor. “Some of these witnesses who were excluded. Why shouldn’t they be allowed to have them testify?” Judge Agee chimed in to raise the Berrier issue. “That seems to be the one who’s, as opposing counsel said, he’s not a paid gun. And from a credibility standpoint, he would have been qualitatively different from all the other witnesses that did appear.” That’s not what the government wanted to hear. “We believe the analysis conducted by the district court was accurate,” Hurt said, referring to Judge Jackson. “This is an issue where Dr. Berrier offered his opinion not in a clinical sense but in a decision-making process within DEA. So that is, in effect, privileged to the United States government.” The appellate judges pointed out, however, that Berrier’s opinion had been disclosed in other cases. “Is it available online?” Judge Shedd asked.

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It is, Hurt conceded. “It’s hard to say it hadn’t been waived then, isn’t it?” Shedd replied. “So it’s waived to everybody in the world but this defendant?” he asked, incredulously. Hurt surrendered the point and moved on to materiality. He argued it was OK for Judge Jackson to block Berrier because the government witness wouldn’t have added anything. “He’s material because he’s from DEA,” Hurt said of Berrier. “That’s the only reason he’s material,” the prosecutor maintained. “That’s a pretty big reason,” the third judge on the panel, Allyson Duncan, observed. “It’s not insignificant. Will you agree with me on that? That in terms of credibility, his position would burnish his credentials in the eyes of the jury. So the fact that he’s DEA would seem to take him out of the run-of-the-mill category of witnesses.” “I would agree with you, the fact that he is a DEA chemist is an issue that the defense would want to make much of,” Hurt said. Judge Shedd pounced again. “I bet you, if you had someone in their organization, or whatever you call it, who said, ‘I tell ya, I looked at it, no question, it’s a hundred percent the same thing,’ ” the judge said, referring to substantial similarity, “I bet you’d want to present him. And you would think that’s a lot better than just having some other uninformed, I mean specifically informed, witness come in. You’d put him on the stand, wouldn’t you?” “I would want to, Your Honor,” Hurt said. “The question is, could I?” “Oh I bet you would argue you could,” Shedd replied. •

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Just a few weeks later, the panel ruled unanimously for Burton and Ben. Judge Jackson messed up, the appellate judges agreed in an opinion by Judge Shedd. “We readily conclude that the district court erred in concluding that the deliberative process privilege applies because, to the extent the privilege covers Dr. Berrier, the Government has waived any reliance on it,” the Fourth Circuit’s May 25 opinion said. Berrier’s testimony was already out there, the court noted, citing, for example, the Kansas case where Berrier testified, leading to an analogue acquittal.4

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But even though the panel ruled for the defense, it did so in a piecemeal way that didn’t fully vindicate Burton and Ben. Instead of granting them a new trial outright, one at which Berrier could testify, the Fourth Circuit gave Judge Jackson another chance to rule against them. The panel instructed the judge to decide an issue that he didn’t rule on the first time around: Whether Berrier’s testimony was material.5 That is, whether it mattered enough to make a difference. The answer was so obvious to the defense that it didn’t need further pondering. Nonetheless, Burton and Ben were back in Judge Jackson’s hands. •

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Meanwhile, Berrier was set to testify in another analogue case that summer of 2018—the prosecution of Jason Way, the Burton/Tony go-between for the Zencense sale.

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Bizarre Relationships

The case against Jason Way hit on familiar spice-prosecution themes: People doing bad things for big money, making millions using dubious Chinese chemicals, and profiting off unwary citizens. As in any analogue case, though, the dispute came down to a question the average person might have more trouble grasping: Was XLR-11 substantially similar to JWH-018? Jason Way hoped Berrier would help the jury answer that question in the negative. Complicating that hope, however, was the status of that would-be star witness. He was on the wrong side of the law, no longer swinging the DEA mallet in the whack-a-mole game, but helping the moles, whether he liked it or not. Subpoenaed by the defense, Berrier made his way out to Fresno for the 2018 trial. Like Judge Crabtree in Kansas, and unlike Judge Jackson in Virginia, Judge Dale Drozd in California let Berrier testify. But the chemist’s unceremonious departure from government service put his character at issue. The prosecution wanted to dredge up as much dirt as it could on Berrier in front of the jury, like it would for any damaging witness. The defense maintained that any allegations outside of Berrier’s scientific lane were irrelevant, and that he should only have to testify—and be crossexamined on—the science. 151

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The prosecution, meanwhile, wanted to block Berrier from giving his opinion about XLR-11 at all. He hadn’t officially rendered it during a formal process when he worked for the DEA, the government pointed out.1 (Of course, that’s because Berrier was never asked to weigh in on XLR-11, following his UR-144 dissent.) Judge Drozd agreed to let Berrier give the jury his opinion. Unable to keep that evidence from jurors, the government sought to downplay Berrier’s role, as it did in previous cases and would continue to do. Assistant US Attorney Karen Escobar asked him on cross, “And your position at DEA was in a lab that really focused on the identification of substances, correct?” “No,” Berrier replied. “That is not correct?” “That is not correct.” “Well,” she continued, “your particular section—and what is it again for the ladies and gentlemen of the jury, where you worked at DEA?” “I worked in the Special Testing and Research Laboratory. So the predominant, what we did was the research, as well as doing special tests on exhibits from throughout the world. We very rarely did typical exhibits that we would get—that a normal lab would get.” “The focus of Forensic Sciences where you were assigned is the identification of substances?” the prosecutor asked. “And within the DEA, there are a lot of Forensic Sciences, but there is not—forensic scientists, but there is only, I guess, a moderate amount in Special Testing,” Berrier replied. “And you would agree with me, would you not, that your particular area of—your section was not identified as the section responsible for making analogue assessments? Would you agree with that?” Defense lawyer Scott Quinlan interjected. “Your Honor, if she is going to get into this, she is—” They went to a sidebar.2 “You know, I stayed away from it studiously,” Quinlan complained to the judge, referring to the internal DEA fracas that was supposed to be off limits in front of the jury. “You did,” Judge Drozd acknowledged. But the judge thought it was fair for the prosecutor to explore who was responsible for analogue determi-

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nations. Berrier “was not in the section primarily responsible for analogue determinations. He wasn’t, was he?” the judge asked at the sidebar. Quinlan explained that Berrier “was initially the go-to guy. And then that changed when cathinone, that he gave an opinion on, that resulted in them not doing the trial because of that,” Quinlan said, referring to the MDPV issue in 2011. “And they came and talked to him and said, ‘You are not being a team player.’ ” The judge realized the situation was complex, but he wasn’t sure how to handle it. He ended the sidebar and dismissed the jury, so he could hear what Berrier would say when asked certain questions. After the jury left, the judge explained to Berrier that the government believed that “the division that you worked in was not the division which made analogue determinations. So there is concern—well. There is concern that in answering that question here today, if it is not a simple ‘yes’ or ‘no’ answer or something reasonably close to it, is that you are going to delve into areas that I’ve ruled inadmissible . . . which would be quite problematic. So Ms. Escobar, what was that question . . . that you want to ask the Doctor?” “Here is how I would propose to phrase it,” she said. “In terms of the way that the DEA functions, is the Office of the Drug Evaluation and Chemical section . . . the competent authority within the DEA for determining whether a substance meets the definition of a controlled substance analogue?” Berrier said yes. “Since we are doing this out of the presence of the jury,” Quinlan added, “was there a time before you were asked to review MDPV in 2011, where your opinion carried different weight?” “Do you want me to answer?” Berrier asked the judge. “You can answer,” the judge said. “We are outside the presence.” This gave Berrier the chance to air his view of the situation, even if the jury wouldn’t hear it. “Part of my job responsibilities within the DEA as a senior research chemist in organic synthesis,” he explained, “was to review the monographs from the Office of Diversion. Okay. They would write something and it would be forwarded on to the Office of Forensic Science. And I would be tasked, since I was the subject matter expert in that, to review the monographs and to either agree or disagree, and put that in

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writing. My writing, my conclusion was the conclusion of the Office of Forensic Science. It was my understanding that the Office of Forensic Science was part of the process in formulating whether or not a compound was structurally similar to a Schedule I or Schedule II material, okay. So I reviewed over 60 of these things,” he said, referring to the monographs he evaluated throughout his career. “I disagreed with eight. Okay. It wasn’t like I’m some rogue chemist just doing this on my side—you know, in my side time or anything. This was part of my job.” “No. That’s not where we are going,” the judge assured. “I don’t know where you are going, sir,” Berrier replied. After more back-and-forth between the lawyers, the judge concluded, “I think what’s appropriately conveyed to the jury is that Dr. Berrier was asked to do what he did, but that the ultimate authority did not lie with his division. Is that an accurate characterization?” he asked the witness. “I would be fine with that,” Berrier said. “That’s accurate.” 3 With the jury back in the courtroom, as Escobar wrapped up her cross, she turned to Berrier’s unseemly DEA departure. Judge Drozd had ruled that prosecutors couldn’t ask the chemist about his pending criminal case. Judges are more likely to let juries hear if a witness has a conviction (even then, it depends on the circumstances), but, at that point, the allegations against Berrier in Virginia were just that. Allegations. Yet, criminal charges weren’t Berrier’s only baggage as a witness. Following his arrest, he was investigated internally at the DEA, for a handful of ecstasy pills allegedly going missing on his watch at the lab in 2017, and for “misuse” of his work computer.4 Berrier saw the investigation as a tool to discredit him in front of juries; he maintained that the pills weren’t missing, just not yet recorded in his notebook.5 He retired with the probe unresolved. Over defense objection, Judge Drozd let the government ask about the investigation in broad terms, allowing damage to Berrier’s credibility with the jury considering how to weigh his testimony. It was similar to what the government could ask about in the Gas Pipe case, but in Texas it was Berrier’s former boss Comparin on the stand, essentially speaking on Berrier’s behalf while bolstering his former employee’s view. In Fresno, the jury was faced with the tainted chemist himself.

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After sparring with Berrier on the science, and him telling her that one of her questions didn’t make sense, Escobar closed by asking, “Were you under investigation for alleged misconduct at DEA in 2017?” “Yes.” “Were you, as a result, placed on administrative leave without pay?” “Yes.” “While that investigation was pending, did you retire?” “Yes.” “When did you retire?” “January of this year.” “No further questions.” 6 •

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Berrier wasn’t the only witness with cross-examination issues who testified for Jason Way. Burton also made an appearance, fresh off his Fourth Circuit win. The defense lawyer, Quinlan, elicited from Burton on direct examination that Burton asked Florida lawyer Tim Dandar about XLR11’s legality. Burton said “it was a fully legal chemical that was in no way at risk of being prosecuted underneath the Controlled Substance Analogue Act. It was not even remotely substantially similar.” As to Jason’s role in the Zencense/ZenBio deal, Burton explained it was “to mitigate Tony Nottoli’s insanity and shepherd the process of the sale of the company from me to Tony Nottoli so that we stayed in compliance and the company didn’t fall down around the transition of the sale.” Burton said Jason “was the only person that was smart enough and had enough integrity, that I trusted, that was willing to deal with Tony to handle the job.” 7 On cross, the prosecutor asked Burton if the lawyer, Dandar, ever said he didn’t recommend XLR-11 for human consumption. “He recommended that we put ‘Not For Human Consumption’ on the packaging,” Burton replied. “Which is a different question,” she pointed out. “It’s the only answer that I have got to that question,” Burton said.8 In response to Escobar asking what the purpose of XLR-11 was, Burton said he didn’t spend much time thinking about it: “It was the product that

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was being sold, requested, popular. And as a Libertarian, I generally don’t concern myself with what people do with the products that I buy if I sell it in a legal marketplace, if I sell a legal product in a legal marketplace.” “What did you think the purpose was for that chemical?” Escobar asked. “I didn’t think about the purpose of the chemical.” “But you knew that the customers liked the chemical?” “I knew that it was more popular when it had some formulas than others, yes.” “And Bizarro was one of the most popular brands?” “Well,” Burton said, “that, in and of itself, is a misnomer proving my point. Bizarro had probably a half a dozen different chemical formulas at different times.” The prosecutor asked Burton about his own charges. “You have a significant stake in the outcome of these proceedings, isn’t that correct?” she asked. “These proceedings here today?” “The proceedings against you.” “Yes,” Burton said. “I would say that I have a significant investment in the outcome of criminal charges against me. Yes. I don’t like jail,” he said. “I am taking the truth to be on my side and willing to take any risk that my statements will be used against me in charges against me because I don’t believe I did anything wrong. And I believe that Jason Way is one of the best people I know, and I would always tell the truth to protect him.” 9 After the jury left for a break, Burton asked Judge Drozd, “Your Honor, can I make a personal statement to Jason while we are in the same courtroom?” “You can’t have a private visit,” the judge replied. “No, I mean like right now,” Burton clarified. “Can I say something to him?” “You can say anything you want,” the judge said. “We are outside the presence of the jury.” “I love you, man,” the witness told the defendant. “I hope everything turns out okay.”10 •

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Escobar’s closing argument suggested a concern on the government’s part that the jury would feel for the man accused of helming a massive, deceptive drug enterprise. She told jurors they needed to apply the law “without regard to how you feel about the defendant or his family members that have been here watching or the fact that you feel that he appears to be a nice guy. He doesn’t really look like a drug dealer,” the prosecutor said of the white defendant.11 “This is a drug conspiracy case,” she reminded the jury. “It’s not typical,” she said. “Rather unusual. May be the first case we have tried here in this district. But just because it is unusual and is different doesn’t make it less important. It’s important, the charges are serious,” she insisted. “Now, I do believe that Zencense was very careful,” Escobar continued. “Ritchie, who seems to be very, very meticulous and type A personality, he was—he said that they didn’t use AM-2201 after it was scheduled. And they most likely did not. Because in this Whac-A-Mole game, as Dr. Berrier said, the defendants are always—the designer drug people, I should say, are always trying to stay one step ahead of the law by tweaking a molecule here or there,” she said, citing Berrier’s 2012 NPR interview.12 But what to do about the former DEA chemist’s opinion that contradicted the DEA’s opinion presented by the government? That’s where it helped that the prosecution could tarnish Berrier’s character. “I would submit that the government experts are more credible than the experts the defense presented because Dr. Berrier, as you heard, he left the DEA under a cloud of suspicion,” Escobar said. “You heard that he was under investigation for misconduct, alleged misconduct at the time that he retired from DEA. He’d been on indefinite leave without pay for many months.”13 Still, the prosecutor acknowledged that the Analogue Act is complicated. “And the law likes to use really big words,” she said. “Don’t be frustrated by the big words or the language. The bottom line, did the defendant manufacture and distribute drugs? The evidence clearly shows he did.”14 A case about drug dealers. And to connect with jurors who might be more musically than scientifically inclined, the prosecutor compared the criminal case to a recent copyright dispute. The legendary soul singer Marvin Gaye’s estate alleged the

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2013 pop tune “Blurred Lines” infringed Gaye’s 1977 hit “Got to Give it Up.” Copyright law also uses a substantial-similarity test, and the jury in that civil case had to compare the works. “The song is substantially the same,” Escobar told Jason Way’s jury. “And, in fact,” she said, “a jury actually made that finding.”15 Jason Way’s jury made that finding too. Berrier’s testimony wasn’t enough to save him. Not a tainted Berrier, anyway. •

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“That was the most bizarre business relationship of all time,” Judge Drozd said at sentencing. “Mr. Nottoli, at various points, gets kicked out of the business completely and Mr. Way is operating it as the top of the chain of command, by his own description, for the majority of that three-month period. And appears to be reporting not solely, but in large part results to Mr. Ritchie. And telling Mr. Nottoli whatever he decides he should or needs to know. Very strange relationship. I’m not sure I totally understand it to this day,” the judge confessed.16 But did Way act “with indifference to human safety? Is there any evidence of that?” his other lawyer, Roger Nuttall, asked.17 “Yes,” the judge replied. “Buying chemicals from China, knowing that they’re going into a warehouse where a bunch of folks are making stuff that everybody knows is going to be smoked because it’s being marketed to young kids as fake marijuana. Getting cement mixer kettles. Throwing this chemical in there. Spinning it around. Saying that’s good enough. Get it out on the drying table. Spray it with acetone. Everybody wear masks because otherwise you’re going to get sick and won’t be able to keep pumping it out. And we’re going to stick it in pouches called Bizarro and Orgazmo and Posh because that will appeal to the market who wants to smoke fake weed. Yeah, is that indifference? I would say it is indifference.”18 Nuttall also raised a larger point about the Analogue Act. He brought up the Gas Pipe case from Texas, where Jim Felman helped win an analogue acquittal. Nuttall wanted to know how it is “that a law produces such wildly different outcomes when prosecuted if the statute is not vague and is basically unconstitutional?”19

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A different outcome in a different case in a different district wasn’t going to sway the judge. But he had a tough time measuring an appropriate sentence in the case before him. “Obviously a very difficult case to sentence in because much of what both sides have said is, I believe, true. And so what do you do with that?” the judge wondered. In the end, he faulted the defendant for failing to heed the Analogue Act, however vague it was. As Judge Drozd put it, “Everybody involved knew they were playing with fire. They just thought they were smarter.” 20 One thing the judge knew for sure was that he wasn’t giving probation, as the defense requested. “A sentence of some weight is needed,” Judge Drozd said. He conceded that Way was “far, far less culpable than, for instance, defendant Ritchie or defendant Galecki.” 21 But he sentenced the forty-five-year-old to eleven years, more than double the pretrial offer Way rejected.22 The Bureau of Prisons lists his expected release in 2030.23

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Tooth and Nail

Despite winning their appeal, Burton and Ben suffered from the piecemeal nature of the Fourth Circuit ruling. It gave Judge Jackson the chance to decide if Berrier’s testimony, which he blocked the first time around, was “material.” Unsurprisingly, he said it wasn’t. In his September 2018 ruling, the judge reasoned it didn’t matter that Berrier had worked for the DEA. He saw Berrier as just another chemist. Which was unnecessary, he said, because the defendants had experts outside the DEA they could call to the stand.1 Burton and Ben appealed Judge Jackson’s latest ruling back to the Fourth Circuit, all the while preparing for their upcoming trial in Vegas— their third overall at that point. But their co-defendant from the first Virginia trial, Nader Abdallah, got some good news. The same month that Judge Jackson issued his Berrier materiality ruling, the Fourth Circuit reversed Abdallah’s convictions. The judge should have suppressed evidence from his unconstitutional interrogation, the appeals court said.2 In their latest Fourth Circuit outing, Burton and Ben received another warm reception in Richmond. It helped that it was the same panel of judges hearing the case, except for Judge Shedd. The most aggressive 160

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interrogator of both the defense and the government the first round, Shedd was hearing a hot case at the courthouse that spring day in 2019. He was on the panel presiding over President Donald Trump’s alleged violation of the Constitution’s emoluments clauses, for accepting benefits from foreign governments. (The panel would side unanimously with Trump.)3 The new judge on Burton and Ben’s panel was Henry Franklin Floyd. He was first appointed to a trial-court position in South Carolina by George W. Bush, replacing Judge Shedd when Shedd was elevated to the appeals court. Barack Obama appointed Floyd to the Fourth Circuit.4 Floyd’s view wouldn’t seem to matter much, given that two judges from the first round, Allyson Duncan and Steven Agee, were on the panel again. “Two of the members of this panel were on the panel last year,” Snook said as he began his argument, making plain the cards he already held. Presumably. He noted that other courts had allowed Berrier to testify. The Fourth Circuit should join them, Snook said, adding that the Nevada judge in their upcoming trial was going to allow it. It would be absurd to have Berrier in one district and not another, Snook argued.5 “I assume that your best argument about Dr. Berrier is that he would be able to avoid the hired-gun cross examination that occurred,” Judge Floyd said early in the argument. It sounded like the defense might have the new judge on their side too. Snook agreed, taking the bait and expanding on the point by recalling that, at trial, the government attacked defense witness Professor Dudley’s financial incentive. Assistant US Attorney Hurt got back up again, with his co-counsel Hudson sitting next to him, knowing he had a tough task ahead. The prosecutor plowed forward, arguing to the panel, in defense of Judge Jackson’s latest ruling, that Berrier was “not unique” as a witness. Hurt added that Berrier would be an impeachable witness, because the chemist’s criminality could be used to impugn his character in front of a jury. That prompted Snook to wonder aloud why, if Berrier would be such a bad defense witness, “are they fighting tooth and nail to keep him out?” Judge Agee acknowledged that, if they called Berrier at a potential new trial, “it could be a disaster for them.” But he suggested the defendants should be allowed to make that choice for themselves.

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By the end of round two in Richmond, it sounded like Burton and Ben had the case in the bag, again. Though not the main issue on appeal, they also wanted the Fourth Circuit to kick Judge Jackson off the case. They argued he was biased against them, citing, among other things, the judge’s “persistence in rejecting Dr. Berrier’s evidence.” 6 The Fourth Circuit didn’t issue a quick ruling like the last time. Weeks passed, then months, as Burton and Ben’s Vegas trial approached that summer of 2019, without word from the appeals court. And their wouldbe star witness, Arthur Berrier, still faced sentencing on child-solicitation charges in Virginia state court. •

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Adding another unusual element to the saga, Berrier was being sentenced on an “Alford” guilty plea. That meant he maintained his innocence but conceded that the government could prove his guilt.7 Ahead of sentencing, Jim Felman added yet another unusual element. Though he didn’t represent Berrier, he nonetheless pleaded the chemist’s case to the Virginia judge. “I have never written a letter of this nature before,” he began his writing to Fairfax County Judge Penney S. Azcarate. “But I do so now because I am hopeful that my perspective may be relevant to your Honor in fashioning a just sentence for Dr. Berrier.” Referring to analogue prosecutions, Felman explained, “Through my defense of roughly a dozen of these cases I have come to learn of Dr. Berrier’s professionalism, his unwavering dedication to the truth in science and law, and his courage to speak the truth about matters within the . . . DEA . . . that have provided substantial assistance to the administration of justice throughout our nation.” The Florida lawyer recounted the “team player” incident from 2011, when Diversion Control told Berrier he wasn’t being one. “It would have been very easy for Dr. Berrier to give in,” Felman wrote, noting that the chemist “stayed true to the science and his convictions rather than take the easy way out.” 8 It’s unclear what impact Felman’s letter had one way or the other. In May 2019, Judge Azcarate sentenced Berrier, who was hoping for a probation sentence, to five years in state prison. But she suspended four years

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of his term. That meant the PhD chemist would serve closer to a year if he stayed out of trouble on probation afterward. 9 For Burton and Ben, Berrier’s conviction meant their star witness would testify not only as a man who left the DEA under a cloud, like he did in Jason Way’s case, but as a felon.

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24

Synthetic Kings Crowned

The convoluted prison transportation system took Burton and Ben on a series of shackled bus rides and flights to their Las Vegas trial in 2019— from Alabama to Georgia to Oklahoma to Nevada. After landing in Vegas, they took another ride to the Nevada Southern Detention Center in Pahrump, a private-run facility an hour outside of the city, where they were held during trial.1 They were met out West by their friend and former employee, Ryan Eaton, whose reward for not flipping on them was an indictment of his own. At liberty since the DEA dropped him at the warehouse after the 2012 raid, Ryan did have the luxury of transporting himself to Vegas. But though he wasn’t detained, Ryan wasn’t exactly free while under indictment the last few years, submitting to urinalysis and unannounced home visits on pretrial supervision. Not to mention the stress of an uncertain future.2 After refusing to flip in 2015, Ryan learned he was indicted in the summer of 2016, while in Montana’s Glacier National Park, near the Canadian border. He and his wife, married the year before, were deep into an epic road trip, seeing as many parks as they could for the National Park Service’s one hundredth anniversary.3 For extra money, they worked in a 164

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saloon up the mountain. But their parks-tour was cut short one day in August, when Ryan came down for cell service to find an email from his lawyer, telling him to get to Vegas for arraignment. The judge released Ryan, but he had to stay in Florida unless the court said otherwise.4 Now, seven years after Log Jam, the thirty-six-year-old was back with his former bosses in Vegas. From putting stickers on their spice packets, to making their spice, to helping them produce movies and festivals, Ryan’s latest effort with the duo was fending off lengthy prison terms in federal court. They had a better dealer at the table, so to speak, than Burton and Ben had in Virginia. From the start, Judge Andrew Gordon seemed fairer to them than Judge Jackson. Not that that said much for Judge Gordon, necessarily; the Virginia judge berated Burton and Ben as conniving crooks while sentencing them to three decades apiece, after blocking them from presenting their case as they saw fit. Indeed, they were trying to kick Judge Jackson off the case with their latest appeal. Judge Gordon, meanwhile, said Arthur Berrier and Claude Cosey could testify. But the Obama appointee didn’t go all the way in the defense’s favor. For one thing, he kept chemist Adam Libby and lawyer Tim Dandar off the stand; the defense wanted to call them to support their argument that they relied on expert opinions to comply with the law. But Libby and Dandar didn’t want to incriminate themselves, the government didn’t want to give them immunity, and Judge Gordon wouldn’t make the government do so.5 Another thing that made the Vegas trial different for Burton and Ben was being locked up during it. Their Virginia convictions were still intact while they waited for the Fourth Circuit to rule. That made it harder to confer with their lawyers in between court sessions. They woke up at the crack of dawn each day at the detention center in Pahrump, and often weren’t back in their cells until night. When they were in Virginia and free on bond, they could talk with Snook and Connell back at their hotel or over a meal.6 The charges they faced in Vegas were worse too. In Virginia, the government called them kingpins, but in Nevada, they were charged as kingpins. They stood accused of running a Continuing Criminal Enterprise, the charge that Dallas federal prosecutors unsuccessfully pursued in the Gas Pipe case. Carrying a minimum of twenty years and up to a life sentence, the kingpin law is another drug-war innovation, passed in the

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Nixon era. It was meant to go after traffickers who ran organizations, controlled underlings, and made big money pushing product.7 Earlier in 2019, New York prosecutors secured a CCE conviction against Joaquin “El Chapo” Guzman, the Mexican drug lord who led the Sinaloa cartel.8 El Chapo oversaw Sinaloa killers and kilogram pushers of cocaine and heroin. Burton and Ben were charged with running the Zencense cartel, such as it was, overseeing underlings like Rachel Templeman and Ryan Eaton. Ryan’s parents sat solemnly and upright during the Vegas court proceedings. Burton and Ben’s crew was there too—the familiar faces from previous trials of Burton’s wife Stephanie and his mom Linda, and Ben’s wife Ashley. Having sat through the Virginia trials with Judge Jackson, the women were relatively upbeat as they watched the case unfold. The defendants seemed confident, too, freshly shorn and in suits despite being in custody. They donned the formal attire in the courthouse holding cells upon arrival from Pahrump each morning. They received their belts and shoelaces before entering the courtroom. Ryan wore a coat and tie for the occasion. A longtime Nevada Assistant US Attorney named James Keller led the Vegas prosecution. He was joined by two lawyers from an elite DOJ unit in DC called the Narcotic and Dangerous Drugs Section. “No other group of drug prosecutors in the country can do what we do,” its website boasts: “use the best intelligence available to identify the drug trafficking groups that pose the greatest threat, and then marshal resources to investigate and prosecute them—anywhere in the country or anywhere in the world.” 9 •

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For all the differences between the Virginia and Vegas trials, a common thread was that the prosecution and defense were living on different planets. Through the prosecutors’ eyes, every move the defendants made was deceptive, including operating openly—a ploy to conceal the spice sellers’ true criminal motivations. Through the defendants’ eyes, it meant they had nothing to hide. The government’s opening statement mirrored the Virginia approach, forming the narrative for the jury that Burton and Ben—even their

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$600-a-week worker, Ryan—were bad people doing bad things for big money. A case about drug dealers. “This case is about three drug dealers who brought in over $1.6 million in under two months by selling dangerous drugs across the country, drugs that they made right here in Las Vegas,” began Cole Radovich, one of the two DC narcotics prosecutors.10 It didn’t matter that Ryan was a mere employee, or that Ben owned 20 percent of the company to Burton’s 80. “Make no mistake about it,” Radovich said, after detailing the kilos of chemicals hauled from the warehouse: “This stuff is not marijuana. It is man-made in a lab and later mixed with acetone. Marijuana is a naturally occurring and growing plant,” the prosecutor said. “This stuff is made in labs in China, and it’s not safe to put into your body,” he said of spice, which people put in their bodies because that naturally occurring and growing plant was illegal.11 The prosecutor drilled down on deception. “The defendants built their drug business around lies and deceit,” Radovich told the jury. “They lied about what the product was and they lied about what the product was used for. The evidence will show that the defendants claimed to be making and selling potpourri or incense, but that was a lie. It’s a product that contains illegal chemicals. It’s a product that you smoke. It’s a product that gets you high, and it’s a product that’s extremely dangerous.”12 Trials being about competing stories, Snook opened on Burton’s. “You will hear evidence in this trial that Mr. Ritchie is . . . for lack of a better way to put it, a difficult person. He is a very, very bright person. He is also a study in contrast in some ways. . . . He has a great aptitude for math and a great aptitude for business and entrepreneurial kinds of things. . . . All of the things have a, sort of a what I’ll call a counter-culturally aspect to them. He started a shop, that eventually became three shops, called The Psychedelic Shack in Pensacola.” Snook pointed out, of Burton, that “one thing we do know is he’s not a chemist. He’s a business guy.”13 Snook embraced the compliance steps the business took, steps the government called deceptive. “So, you will also hear, of course,” the defense lawyer continued, “that in many ways this business was being operated in absolutely the antithesis of what you would expect for an illegal operation. You will hear that they filed all of their corporate papers, for example, that they were properly corporately licensed everywhere that they were doing

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business.” Snook said paying taxes is “not exactly what the drug dealer on the street does.”14 In what became a theme in the trial, Ryan’s lawyer, Shawn Perez, kept things short and sweet, telling jurors that Ryan didn’t know much and didn’t make much money. In that same courthouse a couple years earlier, Perez secured an acquittal for a client charged in the anti-government Bunkerville standoff. The lawyer hoped for the same result in this case that also had libertarian overtones.15 The prosecution painted a grim picture, even if it was a logically inconsistent one. Among the government witnesses was Lindsay Schultz. She ran Sky High Smoke N Accessories in Oregon, the store from which Karl LaDue obtained Bizarro before he died. She described from the witness stand how she ordered the product in 2012 to sell in the store, and how Zencense sent her “does not contain” reports, showing that Bizarro didn’t contain scheduled chemicals. That led her to think everything was legal, she said. “My three-year-old son was in our store running around,” Schultz said of her head shop. “We had kids. We had our dogs, I mean, yeah, my whole family was there.” She didn’t know that Bizarro contained XLR-11, she said at the prosecutor’s prompting.16 The line of questioning suggested it would’ve made a difference to Schultz, a non-chemist, knowing that this chemical, about which she knew nothing, was in the product. Vegas prosecutors also called Rachel Templeman to the stand. As she did in Virginia, she explained how Zencense employees weren’t supposed to call it spice—they were to use the industry terms “incense” or “potpourri”—and that she made six figures from sales in the summer of 2012 alone. She also testified to the obvious point that she thought people smoked the stuff they sold to smoke shops. Keller asked Templeman if she was concerned about distributing analogues. She replied, “Um . . . it—honestly, it didn’t concern me because I believed the product was legal.”17 Another strange aspect of the trial was that almost all of the defense witnesses were in law enforcement—or used to be. Doyle Gresham, the cop who borrowed bongs from the Shack and put Burton in touch with Claude Cosey after the 2012 raid, testified by video from Pensacola, due to health issues. While being cross-examined by the other DC narcotics

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prosecutor, Jason Ruiz, Gresham said, “I used to work in the narcotics unit, and Mr. Ritchie allowed me to come pick up some items that were for sale in his—in his business. They were smoking-style devices. I would—he would allow me to collect those and basically sign them out so I could go do educational speeches to high schools and RAs in college so I could show them items to be aware to look for associated—possibly associated with narcotics use.” In Virginia, the prosecutor flipped Gresham’s bong-borrowing testimony on its head, pointing out that, when the cop needed drug paraphernalia, he thought of Burton. In the Vegas trial, Ben’s lawyer, Richard Schonfeld, flipped it the other way. He asked Gresham on redirect, “Did you testify that you would go to The Psychedelic Shack and Mr. Ritchie would give you props so that you could make anti-illegal drug speeches?” “Yes, sir, I did,” Gresham replied.18 Another defense witness was Claude Cosey, whose prize for trying to take Burton down seven years earlier was having to testify on Burton’s (and Ben’s and Ryan’s) behalf. In retrospect, Cosey wished he was sick that day of the Log Jam raid. He was beyond tired of the case. By the time of the Vegas trial, he was no longer with the DEA. He was back with the sheriff ’s office in Escambia County, Alabama, where he began his career.19 The ex-DEA-agent recounted the familiar story: “Mr. Ritchie took me on a tour of the facility. He showed me several safes in which he had product. Showed me processing rooms where they were—one of the rooms where basically they had people going through and separating out larger, like, stems of plant material and whatnot; and another place, another room, where they were doing packaging—weighing, I believe, and packaging and, like, the full—the full—full wrapped packages, I guess. And then they would heat-seal it, and he showed me that area.” Asked what samples Burton gave him, Cosey said, “Bizarro, Sonic Blast or Sonic Boom, or something like that. I think Neutronium and one other I can’t recall.” He testified that the results came back XLR-11—what Burton said they were.20 But even if the defense called Cosey to the stand, he wasn’t testifying as Burton’s friend. He thought Burton was a weasel. He was fed up with testifying for him. So he was happy to put anything negative he could about Burton on the record.21 He brought up how he asked Burton, “You know people smoke this, correct?” To which he said Burton replied, “Whatever

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they do with it after that, I don’t know and I don’t want to know.” Asked by Keller what Cosey took that to mean, he said, “It was a self-serving statement that, ‘Hey, you know, it’s on there don’t smoke it. So if somebody smokes it, I don’t know anything about it. I’m not there seeing it.’ I mean, that’s what I took it as.” 22 Yet, while Cosey wasn’t there as Burton’s friend, he said something else that didn’t bode well for the government. When Keller asked Cosey what he told Burton about the legality of the operation, Cosey said, “I told him it appears that he was taking the steps necessary to stay within the law at the time, if I remember correctly.” 23 •

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Then it came down to the chemistry once more—that peculiar substantial-similarity dance. Professor Dudley testified for the defense again, telling the jury there’s no scientific way to analyze substantial similarity—a term with no scientific meaning—and that, to the extent there’s consensus in the scientific community, it’s that the chemicals at issue aren’t analogues.24 And after years of fighting to put him on the stand, a jury in a prosecution against Burton Ritchie and Ben Galecki heard straight from Arthur Berrier that the drugs they sold were legal. The problem, however, was that Berrier racked up a criminal conviction in the meantime. Even though Judge Gordon let the chemist testify, he also let the jury hear about the conviction. The judge rejected the defense argument that it was both irrelevant to the scientific testimony and unfair for prosecutors to gain a windfall by not charging Burton and Ben until three years after Log Jam.25 Had they been charged in 2012, they likely would have been tried in Vegas before Berrier’s 2017 arrest and 2019 conviction—assuming the government would have gone forward in the face of that damning testimony from a clean witness. But in the Bizarro timeline they were living in, the defendants had to deal with the Bizarro Berrier. Snook tried to take the sting out of his conviction up front, lest the prosecution raise it first on cross, which would make it seem like they were trying to hide it (even if they wished they could).

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“Unrelated to your employment at the DEA, you have been convicted of a felony; is that correct?” Snook asked the witness. “That’s correct.” “And you were suspended from the DEA as a result of that felony?” “That was correct.” “And you were then resigned?” “Yes.” 26 Cloaked with that air of criminality, Berrier laid out his credentials so the judge could deem him an expert, which would let him give the jury his expert opinion. “Part of my responsibilities also was to do research in fields that would be of interest to the DEA and in about 2008 I noticed that—especially in Europe, that a lot of materials were being sold that were—that was reported to have effects similar to marijuana. And they had names like K2 and things like that, spice, and, so, I was interested in those because I wanted to see what was in those. So I proposed, basically, a group or an effort to get those samples into the DEA so I could do some analysis on them,” Berrier explained. “I proposed that we start a new drug group similar to the methamphetamine and heroin and cocaine drug group and we called it Emerging Trends, because these were new emerging drugs that were. . .coming onto the market. So, they basically agreed with my request and started a whole new Emerging Trends group. . . . I was, like, the senior chemist in charge of them.” 27 Over the government’s objection, Judge Gordon deemed Berrier an expert and let him give the jury his opinion. The former DEA chemist explained why he thought UR-144 and JWH-018 weren’t substantially similar. “And were you ever asked, after you had—you had provided your opinion on UR-144. Were you ever asked for an opinion on 5F-UR-144?” Snook asked, referring to XLR-11. “No.” “Okay. Do you have an opinion on whether 5F-UR-144 is structurally substantially similar to JWH-018?” “Yes, I do.” “And what is that opinion?” “That is not—it is not sub—substantially similar in structure to JWH-018.”

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“All right. Let me ask you this: Do you receive any compensation at all for your opinion here today?” “No.” “That’s all I have, Judge,” Snook said.28 Berrier wasn’t a hired gun. But he was a felon. Keller emphasized that fact on cross. “And the reason why you’re no longer with DEA, Dr. Berrier, has nothing to do with your analysis of chemicals, is it?” the prosecutor asked. “No, it’s not.” “The reason why you’re no longer with DEA is because you’ve been convicted of a felony?” “That’s correct.” 29 On paper, the power of Berrier’s testimony couldn’t be overstated. If jurors believed him—that XLR-11 wasn’t substantially similar to JWH-018—then they had to acquit. That’s why Keller attacked Berrier’s character. That’s why he made it clear on cross that Berrier no longer worked for the DEA, and that the reason he didn’t work for the DEA was a criminal reason. Like in Jason Way’s case, whatever trust a juror placed in a DEA witness because they’re a DEA witness was diluted, if not vanquished. The jury was left with the impression, however vague, that this pivotal witness was some kind of criminal. That line of attack wouldn’t have been available to Virginia prosecutors had Judge Jackson let Berrier take the stand, because the Virginia trials took place before Berrier’s arrest. The defendants didn’t testify. They thought the trial was going well enough. They didn’t want to give the government a chance to make them look bad on cross, given the two sides’ radically different interpretations of the agreed-upon facts.30 •

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Closing arguments evoked an old adage: If you have the facts on your side, pound the facts; if you have the law on your side, pound the law; and if you have neither the facts nor the law, pound the table. 31 The government pounded the table. And the facts—some of them, anyway.

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“Ladies and gentlemen, this was no small spice operation,” Keller began. Focusing on the magnitude of the enterprise, the prosecutor pointed to the “cement mixers, drying tables in a large undescript unlabeled warehouse here in Las Vegas that was used to manufacture hundreds of kilos of spice. 1.6 million dollars, ladies and gentlemen, is the amount of money in fifty days this manufacturing facility was able to generate for those two defendants,” referring to Burton and Ben. “Acetone in fifty-five-gallon drums are at the warehouse. Bottles of acetone, reflecting their use. Obviously they’re in possession of acetone here,” Keller said, emphasizing something that wasn’t in contention. “In order to make potpourri, ladies and gentlemen? Or is this synthetic cannabinoids?” he asked.32 As the prosecutor might have understood, there’s nothing inherently illegal about synthetic cannabinoids. Even ones sold for human consumption. Some are analogues; some aren’t. It’s up to jurors to say which are which, based on their interpretation of the substantial-similarity standard. So acknowledging that a substance is a synthetic cannabinoid, which all agreed XLR-11 was, did nothing to answer the question whether it was illegal. But with the Vegas jury’s rapt attention, the prosecutor continued to carp on the sheer size of the operation, its scope implying its illegality. “The amount of product that was made here is massive,” Keller reminded the jury. “You have nine boxes here of raw material. Each of those boxes, ladies and gentlemen, holds over twenty kilograms.” He cobbled together whatever bits and pieces he could, a meandering stone rolling down a hill, gathering strands of shadiness as it careened toward the jury box. “This is not the manufacture of potpourri,” he assured jurors. “This is the manufacture of synthetic cannabinoids for people to use to get high. . . . Additive, $1,500 a kilo, six kilos of it, 20 kilos being sent according to the text messages from Mr. Galecki to Mr. Eaton. Why use it? It’s got to have a purpose if it costs that much. You see it’s clearly valuable.” As he wrapped up his presentation, Keller put on a PowerPoint slide showing rubber ducks. “If it acts like a duck, looks like a duck, then it’s a duck, ladies and gentlemen,” he told the jury.33 (Leaving aside the fact that rubber ducks aren’t ducks, it was a fitting turn of phrase, whether the

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prosecutor knew it or not. It was used by a politician in the mid-’80s to urge passage of the designer-drug bill that became the Analogue Act. “If it looks like a duck and quacks like a duck, then it’s a duck,” Florida Democrat Lawton Chiles told the West Palm Beach Chamber of Commerce in the summer of 1985.)34 Ben’s lawyer Schonfeld observed that something was largely missing from the prosecutor’s presentation: the Analogue Act. “You didn’t hear much about that in the government’s closing argument,” the defense attorney said. Of all the chemists who testified, he said Berrier “had the most to lose. He could have just easily said I will conform. But no, he stayed true to himself, and rendered an opinion different from ODE saying XLR-11 is not substantially similar in chemical structure.” Yet, whatever bravery Berrier displayed, Schonfeld had to deal with the criminal lurking inside of that noble character. “The felony conviction was unrelated to his employment at the DEA,” the lawyer noted, calling it a red herring.35 And not to be outdone by Keller’s rubber-duck display, Snook offered a weird one of his own. He showed a photo of Bill Clinton on the screen and, while keeping Bill’s body, swapped the head for George W. Bush’s, then Obama’s, then Trump’s. “I’m not trying to get into any political arguments here,” said Snook, who’d been Chair of Charlottesville’s Democratic Party and would go on to serve as the city’s mayor.36 “But is there anybody who is going to seriously maintain that swapping out those heads doesn’t make a significant difference? That they are substantially similar, just because the body is similar?” 37 Ryan’s lawyer, Shawn Perez, didn’t have much to say. Which was good, because, somehow, he barely had any voice left by closing arguments. He spent the little voice he had talking about how he had no voice. The jury seemed to like him, though. The relatively small role he played, by virtue of the relatively small role Ryan played, rendered him almost charming. “I think when we started, I said, you know, I’m going to rely on Mr. Schonfeld and Mr. Snook for the science, which, I mean, I have no clue about science and some of the other aspects of this case,” Ryan’s lawyer confessed. “This case boils down to one thing for Mr. Eaton, and actually for all defendants, and that’s knowledge,” he said. “What did Ryan know about the additive? There is no evidence that he knew it was XLR-11. . . . My voice is just about gone now.” 38

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Given how desperate the prosecution appeared, with all its table pounding, the defendants and their families felt hopeful when the jury retired to deliberate. Not long after those deliberations began, jurors sent a note on July 3, 2019. They had a verdict heading into Fourth of July weekend. The foreperson handed it to the bailiff. Judge Gordon read it. The first count was the kingpin charge, carrying a minimum of twenty years and a maximum of life in prison. “We the jury, empaneled in the above-captioned case upon our oath do hereby state we find the following unanimous verdict: Count one, our unanimous verdict as to count one, Continuing Criminal Enterprise . . . Defendant Charles Burton Ritchie, guilty; Defendant Benjamin Galecki, guilty.” In an instant, Burton and Ben learned they could die in prison. Judge Gordon rattled off the other, lesser charges they were convicted of, including fraud, meaning the jury also thought prosecutors proved that smokeshop owners were deceived by the industry-standard not-for-human-consumption label. Their families were shocked. Burton and Ben were crushed. They had finally put Berrier on the stand. But it did them no good. Not the criminal version of Berrier, anyway. The Bizarro Berrier. There was still the matter of Ryan Eaton. Some twenty counts later, Judge Gordon arrived at his charges. By the time the judge got to him, Ryan thought he was also going down. When the jurors first walked in, he saw several of them smiling at him, which initially gave him hope. But as he heard the guilty verdicts mount against Burton and Ben, Ryan became convinced their smiles were signs they wanted to put him away too.39 “Our unanimous verdict as to count twenty-two, conspiracy to manufacture, possess with intent to distribute, and distribute a controlled substance analogue . . . Defendant Ryan Matthew Eaton, not guilty.” His first instinct was correct, it turned out. Ryan and his family were relieved, of course. So were Burton and Ben. They had sent him out West. They saw his prosecution in some ways as more unjust than theirs.40 Still, though Ryan was acquitted, he felt guilty walking out of that courtroom without them.41 •

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After their Vegas convictions in early July 2019, Burton and Ben got some good news later that month, for whatever it was worth. On July 29, the Fourth Circuit ruled for them on round two of their Virginia appeal. Unanimously.42 “We conclude that Dr. Berrier’s testimony was qualitatively different from the testimony of the other defense witnesses,” the appeals court said, vacating the Virginia convictions again. Berrier wasn’t paid outside his DEA employment to form his XLR-11 opinion, the court noted. “Consequently, the Government could not have impeached Dr. Berrier in front of the jury for having a pecuniary motive for testifying. Dr. Berrier’s inability to be impeached on that ground made his testimony unique and particularly relevant, not cumulative,” the court said, rejecting Judge Jackson’s reasoning.43 The Fourth Circuit didn’t trash all of Judge Jackson’s rulings. It affirmed his exclusion of Cosey’s testimony. It was irrelevant, the appeals court said, because the agent never affirmatively said XLR-11 was legal. The court also said Gorsuch’s Makkar opinion wasn’t as comparable to the defendants’ case as they thought. Makkar, the Fourth Circuit pointed out, involved spice retailers, not producers like Burton and Ben.44 But the Fourth Circuit also said Judge Jackson was wrong to block David McGee’s testimony. It could have been relevant to the defendants’ state-of-mind. Yet it wasn’t clear to the appeals court what the lawyer told the defendants and when, so the panel vacated the exclusion of his testimony, instructing the trial court to figure it out when the case went back there. The Fourth Circuit added that Judge Jackson’s limits on Burton’s testimony could also be relaxed, depending on how the trial court would sort out McGee’s testimony on remand.45 There was still the question, though, of which trial judge would be doing that sorting. Burton and Ben had asked the Fourth Circuit for a new one. The appeals court rejected that request. “Reassignment is only warranted in ‘unusual circumstances,’ none of which exist here,” the Fourth Circuit concluded. “We have examined the record and found no express bias, nor have we seen any indication that the district judge would jeopardize the ‘fundamental fairness’ of any continued proceedings in this case.” 46 That meant a potential third Virginia trial with Judge Jackson, and a fourth overall. They’d have Berrier this time, but it was the tainted

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Berrier—the Bizarro Berrier—whose current value, their kingpin verdicts demonstrated, was debatable. They’d also have stronger defenses in a third Virginia trial, thanks to the latest Fourth Circuit ruling. But with their Vegas convictions, they already faced at least twenty years in prison, and another Virginia trial meant confronting the judge they just publicly blasted as unable to handle their case fairly. They decided to avoid that risk and put all of their charges, in all three districts, together for a final reckoning in Sin City.

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Sentencing with Judge Gordon took place a year later, in September 2020. All the while, Burton and Ben were held in the Nevada Southern Detention Center, in Pahrump, an hour outside Vegas. That meant they were locked up when the COVID-19 pandemic ripped through the nation’s jails and prisons, in addition to the country at large. Thousands of incarcerated people died in the United States, including at the private-run Nevada detention center.1 Burton and Ben were sure they contracted the disease—having lost their senses of taste and smell, among other symptoms—but there wasn’t widespread testing or the “social distancing” that free people could practice.2 Ahead of sentencing, they pleaded guilty on their Virginia and Alabama indictments to relatively minor counts. That let them put all of their charges in front of the Vegas judge for one big accounting.3 The Obama appointee was the fairest jurist they could hope for, they figured. Once sentenced, they wanted to bring Jim Felman—Mr. Analogue—on board for the appeal. But between forfeitures and legal fees over the years, they were low on funds. Their actor friend Samm Levine helped record a GoFundMe video to raise money.4 It kicked off with a livid David McGee. “In forty-three years of practicing law, including seventeen years with the US Department of 178

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Justice, I have never seen anyone treated as unfairly by the government as Ben Galecki and Burton Ritchie,” the former prosecutor said. Nearly a decade after the Log Jam raid, he still viewed the case as a disappointment from the government he once fought for in the drug-war trenches. The video then cut to Samm, who gave an impassioned plea for the duo. “Burton and Ben have been convicted under a nebulous federal law known as the Analogue Act,” the Freaks and Geeks star said. “It’s a highly controversial law that allows federal prosecutors to secretly determine something is illegal and then charge people based on that determination, despite the failure of those people ever knowing they were breaking the law.” 5 In August 2020, the month before sentencing, Burton and Ben pleaded guilty—over video, due to the pandemic—to the other charges from the Virginia and Alabama indictments. Ahead of their pleas, Burton wrote to his friends and family:6 Hello All, I am just about to leave the unit to walk down the hall so I can plead guilty (by video) to the charges in AL & VA. I am having a very hard time processing pleading guilty to a crime that, in my heart, I simply don’t believe I committed. However, I know it is the safest path forward and will allow me the greatest possible chance to return to my children and all of you as soon as possible. It has been 8 years since the beginning of this fight and now all of the variables will be reduced to the outcome of our NV appeal. This is clearly for the best. Nonetheless, My heart hurts today. Thanks to all of you for sticking by me. You just can’t know how important you are. Best, Burton •

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Sentencings can be dramatic affairs. Judges laying into convicts. Victims confronting abusers. But in the COVID era, these reckonings could look

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more like routine work calls, lending an awkwardness to a proceeding like Burton and Ben’s, with life sentences at stake over Zoom. The defendants sat next to one another in a tiny jail room that September day. Judge Gordon was set up in his Vegas courtroom where the trial took place the year before. Prosecutors were also on the line, as were Ben’s wife Ashley, Burton’s mom Linda, and, even though Burton and Ben weren’t charged with any deaths, the parents of Karl LaDue and Victor Woolson. “Sometimes the cover-up is as bad as the crime,” the Vegas prosecutor, Jim Keller, began his remarks, harkening to the government’s deception theme that dominated the trial. “Here, we have the cover-up and the crime as being one and the same. The nature and circumstances of this offense, Your Honor, are severe.” Keller called Burton and Ben “the creators, the leaders, the organizers of one of the most prolific synthetic drug enterprises in the country.” 7 They had apparently been downgraded from one of the world’s most prolific, as the government alleged at their 2017 sentencing in Virginia. Continuing along the deception theme, Keller said that “in any typical business, if you’re selling a product and you’re trying to make money, there’s no reason to hide your product. There’s no reason to call it something it’s not. This was not potpourri. This was not herbal incense. This was spice for smoking.” He emphasized the not-for-human-consumption labeling as further evidence that they knew about the Analogue Act and tried to thwart it.8 “Even the Bizarro label is suggestive of what you will get if you take it,” Keller said. “But there’s nothing on that packet that actually explains what’s inside of it. And that’s another part of the deception. Nobody knows that they’re taking XLR-11. And so when you hear Ms. Woolson in her victim impact statement write, ‘I don’t think my son would have taken this substance had he known what was in it,’ the defendants are taking the decision, the informed decision away from people as to whether or not they should put this stuff in their bodies and use it.” 9 Judge Gordon wasn’t sure about that. “Mr. Keller, let me interrupt and ask you: Do you really think the end user knows the difference between XLR-11, UR-144, J-squared, P-35, any of those? Isn’t the end user trying to get high regardless of what the chemical is in there?” the judge asked.

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“My point is, if it said XLR-11 on it, do you think anybody would have not purchased it? Do you think they would have known what XLR-11 is?”10 Keller didn’t answer directly. He said that, if the defendants “were honest about how bad and hazardous their product is, I certainly think several people would think twice about selling it and using it. Because the problem is, Your Honor, is people think, ‘Okay, it’s fake weed, I will use the same amount as if I had regular marijuana and I’ll smoke it,’ ” he said. “This is not like a typical drug case where a methamphetamine dealer sells to a methamphetamine user. Here, the person buying doesn’t really know what they’re getting.”11 The prosecutor reminded Judge Gordon that Judge Jackson imposed steep sentences in Virginia—and that was without the kingpin law’s twenty-year minimum. “There was no CCE in that case,” Keller recalled. “Granted,” he conceded, “their convictions are vacated there. But the sentences that were imposed—384 months for Mr. Ritchie, 336 for Mr. Galecki—these were sizable numbers.”12 Calling for life sentences under the kingpin law, Keller said it wasn’t something the government took lightly. But anything less would be unjust, he argued. “If the court were to say, ‘I’m going to sentence the defendants to the lowest I can, 20 years,’ which is within the court’s discretion, how would that convey deterrence to the scope and the volume and the breadth of these defendants’ enterprise?” the prosecutor asked.13 Teresa Woolson spoke next, sitting with a photograph of Victor behind her. “My only son, Victor Orlando Woolson, has been gone eight years now,” she began, trying to hold her voice steady. “He is forever nineteen.” She bolstered Keller’s claim that users thought the product wasn’t harmful—at least Victor didn’t think so, his mother said. “How bad can it be, Mom?” she recalled her son saying. “It’s in the store.” She implored Judge Gordon to give the defendants “the maximum sentence for each crime.”14 Karl LaDue’s father, Christoph, started tearing up as he spelled his name for the court reporter. After regaining some composure, he recounted the day his son died. “He was screaming. He ran into, in our farm, into blackberries that are like natural barbed wire, and scarred him up—he was bleeding all over. To say that this did not lead to his death is reprehensible,” Christoph said. “To suggest that this had nothing to do with his death, you ought to be ashamed of yourself,” he said, not mentioning Burton and Ben

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by name, but clearly directing his remarks toward them: “You sold an illicit drug that was a poison. And don’t you ever forget it when you languish in your prison cell.”15 Karl’s mother, Shelley, was the last parent to speak. “At this time in my life,” she said, “I watch my friends enjoy weddings, careers, and babies born of their beautiful children that I will never have a chance to in my life with him. As he’s gone for these eight years, I don’t stop thinking about him every single day. It has never stopped.”16 •

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Judge Gordon acknowledged the families’ “unfathomable” losses. But despite the calls for life sentences, he stuck to the minimum twenty years under the kingpin law. On the remaining charges, he imposed much shorter, singledigit terms, to run concurrently. The judge didn’t laud the defendants’ conduct. But he raised “serious concerns” about analogue prosecutions and mandatory minimums. “A meth or coke dealer clearly knows he or she is selling an illegal substance,” the judge said over Zoom. “A seller of an analogue may not know he or she is breaking the law until the jury decides it is in fact an analogue. I am troubled by that.”17 Still, he had to impose terms that could keep the pair locked up into their sixties. Burton was forty-nine; Ben was forty-six. “Even the minimum twenty-year sentence will have these defendants coming out of prison in their sixties, when most people are well past the likelihood of recidivism and, frankly, I don’t see either of you as likely to recidivate,” the judge said, using the technical term for committing more crime.18 Referring to the federal appeals court with jurisdiction over Nevada, the Vegas judge said he would “leave it to the Ninth Circuit to address the issues of constitutionality and vagueness and other potential infirmities that the defendants no doubt will raise on appeal. And I will leave it to Congress to someday address the problems with mandatory minimum sentencings, and to address whether the statutes at issue here should be revised.”19 •

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With Burton and Ben sentenced, Tony Nottoli—the Zencense buyerturned-cooperator—was ready to learn his fate in Fresno. Tony had a fruitful cooperator career, helping the feds win tough-to-prove analogue cases against Burton, Ben, and others. “Nottoli was instrumental in the government’s efforts to achieve this result,” he said in his sentencing memo, referring to the Vegas convictions and kingpin sentences, having testified both there and in Virginia. Pushing for probation, Tony’s lawyer said his client suffered recent strokes, and that COVID-filled prisons risked death for the fifty-eight-year-old.20 Nevertheless, Judge Drozd, who also presided over Jason Way’s trial and eleven-year sentence, gave Tony six months. He recommended the defendant serve the time in a Bureau of Prisons medical facility.21 Meanwhile, the combination of COVID and health issues helped free Tommy Malone Jr., who Burton and Ben knew from the Coalition for Cognitive Liberty days. Malone was arrested in Operation Log Jam and convicted in a Louisiana conspiracy related to the distribution of Mr. Miyagi spice.22 With three years left on his prison term, the judge granted the fifty-three-year-old’s compassionate-release motion, over the government’s objection, citing a list of high-risk ailments coupled with “the impossibility of social distancing in a prison setting.” 23 After his release, Malone worked on marketing and sales ventures like he did before he got into the spice racket, and regularly posted motivational videos on YouTube.24 His co-defendant Daniel Francis, who directed the coalition and likened spice to a euphoric peanut-butter and jelly bite during a 20/20 interview, had been out since 2017. He cut a similar post-release path to Malone’s, turning his talents to motivational speaking and leading workshops for churches and recovery groups, under the moniker Dan Dan the Healinman.25 •

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As for Burton and Ben, with their indictments wrapped up, the stage was set for their latest appeal. Jim Felman joined the defense team after sentencing, combining forces with Lloyd Snook for an effort that could go all the way to the Supreme Court, where Snook helped win the McFadden case in 2015.

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Devil’s Advocate

Headquartered in San Francisco, the Ninth Circuit is the largest federal appeals court. It hears disputes from California, Arizona, Alaska, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, Guam, and the Northern Mariana Islands.1 The court has long had a reputation for liberal rulings and, relatedly, for being reversed by the conservative Supreme Court.2 But the shape an appeal takes hinges on which three-judge panel is randomly assigned at the outset. With dozens of judges spanning the ideological spectrum on the vast circuit, especially after Republicans made inroads during the Trump era, that initial draw was a crapshoot.3 The analogue issue made it even more of a crapshoot. Relatively few judges have weighed in on the rarely used law, and, out of the ones who have, appointees of both parties have ruled both ways. Take former Tenth Circuit Judge Neil Gorsuch’s Makkar opinion for the defense. It would be a while until Burton and Ben found out who was on their panel. Lawyers don’t know which judges will hear the case when they write their briefs. Against that uncertain backdrop, Felman and Snook submitted their opening filings in 2021 while the Zencense duo served their kingpin sentences. Spice was a popular pastime for some prisoners, so Burton and Ben lived with reminders of the drug that landed them 184

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there.4 After a stretch in a scandal-plagued Atlanta prison on the way back from Nevada, they returned to Talladega, where they’d stay for months or years to come, depending how their appeal played out.5 It was a homecoming of sorts, having been in the Alabama facility following their Virginia convictions, before they were shipped to Vegas for trial. When the latest COVID- or security-prompted lockdowns didn’t keep them more confined, Ben worked in the law library; Burton worked in the movie room, a coveted position he’d been after since their first Talladega stint.6 “Mr. Galecki has been convicted and sentenced to twenty years of imprisonment for conduct that it would not have been possible for him to learn was even considered by his government to be unlawful,” Jim Felman wrote in his Ninth Circuit brief for Ben, filed in April 2021. “The public does not receive notice of or have the ability to learn in advance of prosecution which substances the United States government believes are unlawful under the Analogue Act.” The term “substantially similar,” Felman explained to any judge or clerk reading the brief who wasn’t familiar with this odd corner of the law, “is not one of science; it is an inherently subjective matter and there exist no scientific, mathematical, or objective metrics for its measurement or determination.” He argued that the DEA’s refusal to tell the public about its analogue determinations, combined with the subjective nature of those determinations, creates a “perfect storm of vagueness.” 7 Felman also went after the Supreme Court’s 2015 McFadden decision, which was a defense win but didn’t go far enough for the Florida lawyer. “While it may be initially comforting that after McFadden a defendant cannot be convicted of an Analogue Act offense unless they ‘know’ the substance at issue qualifies as an analogue,” he wrote, “that comfort fades swiftly upon recognition that the supposed object of ‘knowledge’ is the purely subjective question of ‘substantial similarity’ in chemical structure.” With experts outside the government nearly unanimous about XLR-11 not being substantially similar to JWH-018, he wrote, “allowing juries to nevertheless speculate and decide that Mr. Galecki ‘knew’ the opposite is a game of roulette that cannot be permitted under the due process clause of the Fifth Amendment.” 8 No appeals court had ever held the Analogue Act unconstitutionally vague before. So the vagueness challenge was a long shot. The case would likely turn on other issues. Arguably the most important of those other

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issues was the Continuing Criminal Enterprise charge. Because even if the Ninth Circuit rejected the vagueness claim, a reversal on the kingpin convictions could topple Burton and Ben’s mandatory minimums, freeing them in the nearer term as opposed to the following decade. To sustain a CCE conviction, prosecutors must show that a defendant supervised at least five people in the commission of at least three crimes. Ryan Eaton was included in the government’s count. But Ryan can’t count, because he was acquitted, Felman argued in his brief. Other circuits have held that acquitted co-defendants can’t be counted among the five supervisees. The Ninth Circuit hadn’t spoken on the issue, making it an open question that could be resolved one way or the other in Burton and Ben’s appeal.9 Snook’s brief for Burton incorporated Felman’s, giving the defense two briefs to attack the same case. One of the arguments Snook advanced was against the government’s refusal to grant immunity to the chemist Adam Libby or the lawyer Timothy Dandar, effectively keeping them off the stand. “The testimony of both Dr. Libby and Mr. Dandar would have established the state of mind of the Defendants in June and July 2012, when they were producing products containing XLR-11 in Nevada, and would have dovetailed with the testimony of former DEA agent Claude Cosey, who testified that when he met with Burton Ritchie on July 26, Ritchie had told him that they believed that what they were selling was perfectly legal,” Snook wrote. “Certainly the prosecution could, and did, argue that the conversation with Cosey was just an after-the-fact effort to mislead law enforcement, or that the instructions to their staff that the products were legal were necessary to maintain a facade for customers,” Snook continued, “but Dr. Libby and Mr. Dandar would have been able to show that the Defendants actually WERE relying on chemical and legal opinions that XLR11 was a legal product.”10 Prosecutors didn’t give witnesses immunity directly, Snook admitted in his filing. But government witnesses received benefits—like Rachel Templeman, who testified in Virginia and Vegas and was never charged. “To selectively offer benefits to some criminals to testify against others,” Snook wrote, “carries the substantial danger of distorting the trial testimony, whether it is through a formal grant of immunity or through a much more informal, but every bit as seductive, plea agreement in return

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for cooperation.” The due-process issue implicated by the denial of immunity, Snook went on, “speaks to the balance of forces between the accuser and the accused, and in this case the Government had ALL of the power. They had the power to (and did) delay any criminal prosecution for more than 3 years; they had the power to (and did) sever the case into three parts, forcing the Defendants to defend bits and pieces of the same conspiracy in three federal courts; they had the power to (and did) seize millions of dollars of assets of the Defendants and hold them for 3 to 6 years before trial; they had the power to (and did) prosecute other potential allies of the Defendants; and they had the power to (and did) negotiate with potential co-defendants to either not prosecute them at all or to work out sweetheart deals.”11 Responding to Felman and Snook in August 2021, the Justice Department emphasized the tough task the defendants had ahead of them in trying to topple the Analogue Act. “The Analogue Act is not vague,” DOJ said in its brief. “The Supreme Court has held that the statute is unambiguous, and that the mens rea element alleviates any vagueness concerns,” referring to McFadden. “Likewise, every circuit court to address the issue has held that the statute is not vague.” The government acknowledged the circuit split over whether someone like Ryan Eaton, who’s acquitted, can count as one of the five supervisees under the CCE. But it said the Ninth Circuit should side with the courts who’ve ruled such a person counts.12 With the briefs filed, the next step was finding out which three judges would be randomly selected to hear the case. In the Fourth Circuit, they found out the day of arguments who was on their panel. The Ninth Circuit told lawyers the week before. In late November 2021, Burton and Ben learned who would decide whether they’d stay locked up for another decade. It wasn’t clear from the makeup of the panel how the case would turn out. Ronald Gould was a moderate Bill Clinton appointee. Daniel Collins was a Trump appointee who clerked for Scalia. The third judge, Roslyn Silver, wasn’t even on the Ninth Circuit. Sometimes trial-court judges are picked to sit on appellate panels, and so it was with Silver, a Clintonappointed district-court judge in Arizona.

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Unsurprisingly, given its rare use, none of the judges seemed to have Analogue Act experience. Judge Collins’s record stood out, relatively, as the most promising for the defense. A 2020 dissent he wrote was emblematic of the spirit Burton and Ben hoped to harness on appeal. Collins dissented from a ruling against a man convicted of groping a sleeping Japanese student on a flight from Tokyo to Los Angeles. The judge thought the jury instructions at the man’s trial didn’t adequately make the government prove the defendant’s guilty mind. Collins wrote that “we cannot affirm a criminal conviction, no matter how serious the underlying conduct, if the conviction is based on a crime that Congress did not write and on findings of guilt no jury ever made.” Citing Robert Bolt’s 1960 play A Man for All Seasons, the Trump appointee wrote, “Put simply, we are not permitted to ‘[c]ut a great road through the law to get after the Devil.’ ”13 It wasn’t an analogue case, but Collins’s point could bode well for analogue defendants. It evoked his former boss Scalia’s questioning at the McFadden argument in 2015, when the justice told the government lawyer pushing for a wide-ranging reading of the Analogue Act, “The statute doesn’t say knowingly be a bad guy.”14 There was no Scalia-esque browbeating from the bench to either side at the Ninth Circuit on December 6, 2021. Still taking COVID precautions, the court heard argument remotely, over video.15 Felman argued the case from his Florida office, helped by one of his firm’s associates, Brandon Breslow. Arguing for the government was Elizabeth White, an experienced federal appellate prosecutor in Reno. They didn’t say why, but only Judges Gould and Collins showed up on the judicial side of the video. The trial judge, Silver, would later review the argument and take part in the decision, announced Judge Gould, who, as the most senior jurist on the panel, was in charge.16 Gould and Collins probed both sides during the hour-long session, leaving the outcome as uncertain as it was when the panel was announced the week before. The hearing took an odd detour, however, when both judges questioned the need to read the Analogue Act conjunctively. That is, they questioned whether the law required proof of both substantially similar structure and effect (or representation of effect). It was weird because courts around the country had long interpreted the law conjunctively, requiring both structure and effect, and the government wasn’t arguing otherwise.

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“I can tell your honor that I believe that you would be splitting with every other circuit if you were to now rule that is in the disjunctive,” a surprised Felman told Judge Gould. That frightening possibility for the defense didn’t seem to bother the judge. “That’s okay,” Gould replied. “I don’t mind splitting with circuits if I think they’re wrong.” But even the prosecutor, White, didn’t think those other circuits were wrong. “That is how both of the parties interpret the statute in this case,” she said of the conjunctive approach. “Obviously the court is not bound by the government’s interpretation of something,” she added, “but I’m not asking you to reject the government’s interpretation.” There was plenty on which the government and defense disagreed. Like vagueness. Even if that claim was a long shot, the hearing gave Felman the chance to beat his drum against the law he’d been fighting for almost a decade. “Prosecutions for XLR-11 under the Analogue Act result, for the first time in the history of our Republic, in the imprisonment of people for conduct that it would be impossible to know is even considered to be unlawful,” the Florida lawyer argued. He told the Ninth Circuit judges of his fear that “this law, as applied here, if it is not vague, no identifiable boundaries in the law will remain.” But laws necessarily tolerate some measure of uncertainty, the prosecutor countered. She said people don’t have the right to “get as close to the line as possible without going over.” She noted the Ninth Circuit recently rejected a vagueness challenge—in Jason Way’s appeal.17 One point that went against the government at the argument was fraud. Judge Collins pounced when White said the spice was labeled notfor-human-consumption, “when everyone knew full well that these products were intended for human consumption.” If everyone knew, Collins wondered, then “how is it possible to say that these were fraudulently labeled and it was a scheme to defraud in that respect?” He asked, “If everyone is in on the joke, so to speak, and everyone understands ‘haha we put this on here but everyone knows that nobody pays any attention to that and nobody believes that,’ where is the capacity to mislead?’ ” In his rebuttal that closed the session, Felman made a direct play for Collins and his Man for All Seasons ethos. “The government’s theory,” Felman said, “was you should just look at how evasive the defendants

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were, that they were bad people, that their actions were vile and despicable, and, your honor, to paraphrase, the government is asking this court to cut a great road through the law to get after the devil.” Judge Gould thanked the lawyers “for the excellent arguments in this difficult case. . . . Counsel will hear from us in due course.”

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Latest Front

While Burton and Ben’s Ninth Circuit appeal was pending, federal prosecutors in New York unveiled the latest spice indictment under the Analogue Act. It charged defendants with distributing an unscheduled synthetic cannabinoid throughout the country from the Bronx. Some of the brand names they allegedly sold were Krazy Turkey, COVID-19 Coronavirus Limited Edition, and, in a throwback to a bygone era, Bizarro. “In an effort to conceal their criminal activity,” DOJ’s press release said, the defendants claimed their products were “legal.”1 A decade out from Operation Log Jam, the whack-a-mole game continued, as head shops hawked the latest “legal highs” like Delta-8 THC, unable to know for sure what the next substance charged under the Analogue Act might be.2 But the government was focused on a more-deadly synthetic enemy: illicit fentanyl. The potentially lethal opioid and its variations made an unfortunate return.3 Like the Reagan-era panic that led to the 1984 emergency scheduling law and the 1986 Analogue Act, fentanyl’s resurgence prompted the feds to seek new drug powers. Essentially, the Justice Department created a supercharged version of the Analogue Act. Using its temporary authority from the 1984 law, in 2018 the DEA scheduled “fentanyl-related substances” on a class-wide 191

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basis.4 Class-wide scheduling meant that any substance was illegal if it met the broad structural criteria laid out by the DEA. But these unidentified chemicals’ effects didn’t have to be like fentanyl’s at all. Having relieved itself of that burden, the department achieved what it failed to accomplish with the Analogue Act decades earlier. Recall the prescient complaint from DOJ’s Stephen Trott (the former folk musician who became a federal judge) that proving both substantially similar structure and effect would be “very difficult to prosecute successfully in court.” 5 The Trump-era fentanyl ban shed that obligation. But at what cost? Under the DEA’s new order, these fentanyl-type substances automatically went under Schedule I, the most-restricted control with strict research limits, reserved for drugs with no approved medical use. Fentanyl, which has long been used legally in hospitals, was under Schedule II. The government couldn’t vouch for unknown substances’ effects—they might be worse than fentanyl, not as bad, or even helpful. So, like the Analogue Act, that sweeping power raised concerns for civil rights and science alike. As Patricia Richman of the federal defenders told a congressional committee examining the issue in 2021, class-wide scheduling “takes us backward by returning to the failed and unjust strategies of the drug war.” 6 The 2018 ban was imposed during the tenure of Donald Trump’s first Attorney General, Jeff Sessions, a longtime drug-war proponent.7 “President Trump has made it a cornerstone of his presidency to combat the deadly drug crisis in America, and today the Department of Justice is taking an important step toward halting the rising death toll caused by illicit fentanyls,” Sessions announced.8 Trump forced him out of office (for not protecting the president from the Mueller investigation) long before the class-wide ban was set to expire in 2020. 9 But government support for the ban continued with Sessions’s eventual replacement, William Barr (who criticized the Mueller investigation).10 Barr previously served as George H. W. Bush’s attorney general. His drug-war reputation preceded him. “It’s hard to imagine an Attorney General as bad as Jeff Sessions when it comes to criminal justice and the drug war, but Trump seems to have found one,” the Drug Policy Alliance said upon Barr’s nomination.11 In January 2020, as the class-wide fentanyl ban was set to lapse, Barr pushed Congress to keep it in a Washington Post op-ed. He warned that

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“the legal prohibitions on the various forms of fentanyl expire” if lawmakers failed to keep the ban going. If they didn’t act, Barr wrote, “the Justice Department would not have the legal tools to prevent this onslaught.”12 A reader who, understandably, never heard of the Analogue Act might have believed Barr’s statement. Under the act, of course, the government could prosecute a seller of any substance that a jury agreed was substantially similar to a scheduled one. However misleading Barr’s claim was, it underscored how much times had changed since 1986, when the Meese Justice Department viewed the Analogue Act as the synthetic-drug war’s cutting-edge weapon. The Post published a responding op-ed later that month, headlined “William Barr’s New War on Drugs.” Former federal judge Nancy Gertner wrote that Barr’s “support for an expansion of mandatory minimum sentences for federal drug crimes involving fentanyl analogues should come as no surprise given his long record of hawking incarceration as a solution to our drug crisis.” The Clinton appointee noted that, in light of the Analogue Act, Barr’s claim about there being no way to tackle the issue without class-wide scheduling was false.13 Nonetheless, Congress voted to keep the ban, on a temporary basis, splitting the difference between hardliners who wanted permanent classwide scheduling and reformers who wanted none. And though Joe Biden successfully ran on criminal-justice reform in 2020, he supported the ban launched under his predecessor. His administration even pushed for permanent class-wide scheduling (yet also advocated for some relief from mandatory minimums).14 All the while, cannabis remained on Schedule I, despite Biden’s modest campaign pledge to put it on Schedule II, a move that wouldn’t legalize the plant but would allow more research into it.15 Biden also hadn’t delivered on his promise to “decriminalize cannabis use and automatically expunge prior convictions.”16 As the fentanyl ban was set to expire again in October 2021, Republicans kept pressing for permanent scheduling while reformers pushed to drop it altogether, casting it as the latest failed chapter in the drug war.17 “The federal government must not repeat the decades-old mistakes it made around crack-powder sentencing disparities,” read a letter from 140 civilrights groups to leaders including Attorney General Merrick Garland, whom Biden picked for the top-cop post after Republicans blocked him

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from the top court. “Now, more than ever,” the letter said, “policymakers must turn to evidence and science, not fear, to find answers.”18 Policymakers continued to extend the ban, as synthetic-opioid deaths rose amid a contaminated drug supply left unregulated by prohibition.19 And while the civil-rights groups raised concerns about due process, racial disparities, and the like, law-enforcement groups questioned the Analogue Act’s ability to fight the modern war.20 In a 2021 letter to the Senate Judiciary Committee, several interest groups lamented that the 1986 law “produces inconsistent jury verdicts, even for the same substance.” They cited two analogue cases from Texas, where one jury convicted and another acquitted. Presumably, the groups were worried about the acquittal, not that the verdicts were inconsistent; if consistency was the problem, then consistent acquittals could solve it. In any event, they chose a curious substance to illustrate their point: XLR-11, which Arthur Berrier wasn’t asked to formally review after he dissented on UR-144 in 2012. The guilty verdict cited in the letter came in a 2014 case, years before Berrier testified anywhere. The acquittal came in the Gas Pipe case, where the jury learned about Berrier’s dissenting view in 2018. But the law-enforcement letter didn’t mention Berrier or the DEA’s internal science war, only that one XLR-11 case resulted in a conviction and another didn’t. Arguably reaching the right conclusion for the wrong reasons, the letter said the differing verdicts “undermine trust in the judicial system[.]” 21 Oddly enough, while the fentanyl issue prompted the tough-on-crime set to turn on the Analogue Act, some Democrats effectively endorsed the act in their effort to oppose class-wide scheduling. Writing to President Biden in 2021, Senator Cory Booker of New Jersey and other Democrats said the fentanyl measure was unnecessary because prosecutors have the Analogue Act.22 Speaking at an Ohio State law school panel that year, US Congressman Bobby Scott of Virginia went a step further—he contrasted the class-wide fentanyl ban, which he said gave prosecutors a dangerous shortcut, with the Analogue Act, which he said “protects due process rights and is an important check on over-criminalization.” 23 To put it mildly, that’s not how people prosecuted under the act have seen it. And though Scott didn’t tout the act for its own sake, but rather for the purpose of opposing the class-wide measure, it was a remarkable statement from a politician who was otherwise sensitive to drug-war excesses.

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With Democrats praising the Analogue Act, it’s unsurprising that Sasha Shulgin’s prophecy of the designer-drug law’s demise hasn’t come to pass. Indeed, the fate of that “bad law,” as the counterculture chemist called it in 1990, may lie with the Supreme Court.24 If that’s so, then analogue defendants might be glad that Gorsuch filled Scalia’s seat. After all, when he was on the Tenth Circuit, the Trump appointee wrote that the Analogue Act’s survival “may still remain to be seen.” 25 Perhaps he’ll take another run at the law in Burton and Ben’s case, if it gets to the justices someday. And if the act is struck down—whether in Congress or in court—federal prosecutors accustomed to a sure thing won’t miss it. Interviewed by the US Government Accountability Office for a 2021 report, DOJ officials complained about the act’s burden compared to the ease of class-wide scheduling. They said they have “little certainty that a jury will find the substance is an analogue though they are expending a great deal of time and resources.” After fervently crafting the act and convincing Congress to pass it in the mid-’80s, prosecutors today try to avoid it.26

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Outro the story was quite clear

Led Zeppelin’s Kashmir played in the Psychedelic Shack on a random summer day in 2021. The epic tune of a winding journey was as fitting a soundtrack as any for the empire Burton Ritchie launched three decades prior. No longer its owner, Burton was locked up a four-hour drive north, in Talladega, awaiting the outcome of his and Ben’s Ninth Circuit appeal. The Shack still carried the same staples. Minus spice, of course. Pipes filled the glass display cases. Gas-mask bongs hung along the wall. Hippie T-shirts, stickers, and incense—actual incense—filled the homey head shop on Plantation Road in Pensacola. A tattoo studio sat in the corner, next to an old-school soda-vending machine that wasn’t working. As ever, a popular product that day was one that people used to pass drug tests. Within minutes, two different sets of apparently teenage (or not much older) girls walked in and bought the detoxifying potion that would let them work, play sports, or avoid incarceration. The drug-testing industry soldiered on. Across town in the evening, it neared closing time at the Shack’s larger, North Ninth Avenue shop. Located around the corner from a medicalcannabis dispensary, the store had emptied out, save for a clerk and a 196

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Figure 5. The Psychedelic Shack, Plantation Road, Pensacola, Florida, 2021. Photo credit: Jordan Rubin.

tattoo artist (and a journalist). A wide-eyed, skinny white guy with a shaved head, perhaps in his forties, wearing shorts and not wearing a shirt but holding one, stepped into the establishment. Once inside, he quickly donned the shirt in a swift, nervous motion. He crept around the big room for a while, studying the colorful pipes and trippy figurines as a museumgoer might, before quietly approaching the clerk and asking for shrooms. The clerk didn’t have any. The man left, shroom-less, trekking into the swampy Pensacola night. •

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Downtown during the day that week, Ryan Eaton sat on a couch at the Big Jerk Soda Co., the craft-beverage venture he started with his wife. He had learned a thing or two about running a business over the years: Sourcing ingredients, mapping out distribution, dealing with regulators. The Zencense connection wasn’t hard to see. Ryan smoked a vape pen, having shaken the Marlboro Reds habit he picked back up after the Log Jam raid and the Vegas trial that followed. It was almost a decade out from the raid, and two years out from the trial that could have put him behind bars with Burton and Ben. Ryan started to cry when he reflected on the day the jury acquitted him and convicted his former bosses. He was grateful to escape the ordeal. But not without trauma. For months after he returned to Pensacola in 2019, Ryan dreamed that he was being chased by law enforcement. He’d wake up sweating. He got a medical-marijuana prescription. He doesn’t have those dreams anymore.1 •

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Up in New York State, Teresa Woolson still ran the VOW Foundation, the drug-awareness group that bore her son Victor’s initials. The ninth anniversary of his death had just passed. Teresa helped train people in her community to use naloxone, the life-saving medicine that reverses opioid overdoses.2 She came to view the drug issue through the lens of public health over the years. “I’m leaning more towards harm reduction,” she said. “Meeting people where they’re at.” 3

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Acknowledgments

I’m grateful to all the people who’ve spoken to me about this subject over the years, helping to illuminate a dark corner of the law and, for some, the darkest moments of their lives. As for the book itself coming together, I’d like to thank my friend Charlotte Bismuth for crucial encouragement and guidance. And you wouldn’t be reading this if not for the wisdom and steady hand of my literary agent, Joy Tutela, of the David Black Agency. Same goes for UC Press editor Maura Roessner, who believed in the project and saw it through to publication with her team, including (but, as the lawyers say, not limited to) Victoria Baker, Lynda Crawford, Teresa Iafolla, Katryce Lassle, Francisco Reinking, Lia Tjandra, Sam Warren, Madison Wetzell, and Chloe Wong. I’m likewise indebted to Emily Dufton and David Farber for feedback on an early manuscript. Lastly, thanks to the DEA public-affairs official who called me subversive for exploring the agency’s inner workings.

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Notes

intro. bizarro 1. Chap. 8. 2. Chaps. 4–5. 3. Chap. 19. 4. Chap. 5. 5. Chap. 4. 6. Chap. 5. 7. Ibid. 8. Chap. 8. 9. Ibid. 10. Chap. 9. 11. Ibid. 12. Chap. 12. 13. Chaps. 17, 18, 24. 14. Chap. 3. 15. Chap. 6. 16. Ibid. 17. Chap. 20.

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chapter 1. humpty dumpty ’s designerdrug war 1. State of Florida v. Charles Burton Ritchie, Case No. 90–2862-D, Escambia County Clerk of Courts Case File, 5. Even a simple acid sale is complicated in this story. It may not have been acid after all. According to Burton’s court file, after the prosecutor charged him with selling LSD, a state lab report showed that the cube contained something else. But the file doesn’t say what. The prosecutor brought a counterfeit-sale charge, yet Burton’s no-contest plea (taken after the new charge was lodged) was to a controlled-substance sale. The state lab didn’t have a record of the report all these years later; presumably no one involved in the random case from 1990 anticipated it mattering now. Maybe it doesn’t. But in a book about selling things that aren’t scheduled, it seems worth noting. 2. State. v. Ritchie Case File, 4. LSD is short for lysergic acid diethylamide. 3. State v. Ritchie Case File, 11. 4. Ibid. 5. Linda Jean Crews Sentencing Letter for Charles Burton Ritchie, Mar. 29, 2017, Case No. 4:15cr18, Eastern District of Virginia (Second Trial). 6. Author interview of Charles Burton Ritchie, Oct. 6, 2020. 7. State v. Ritchie Case File, 5. 8. Thomas Lovoy, Part 1: Have You Seen Franklin’s Tower, draft manuscript, 3–4. 9. Author interview of Samm Levine, July 27, 2021. 10. Author interview of Ritchie, Aug. 29, 2020. 11. Crews Sentencing Letter. Crews email to Author, Aug. 25, 2021. 12. State v. Ritchie Case File, 5. 13. Testimony of Ritchie, First Trial, United States v. Ritchie et al., Eastern District of Virginia, Oct. 17, 2016, Transcript, 1695. Author interview of Ritchie, Oct. 6, 2020. 14. National Archives Case File, United States v. Damon Forbes et al., Case No. 92cr105, Examination Letter to Attorney Brian Holland, Sept. 29, 1992, Case File, 1001; Detention Hearing testimony of DEA agent Donald Sperry, Case File, 1395 (Transcript, 36); Letter from Professor Shelley Copley to Judge Richard Borchers, Apr. 8, 1992, Case File, 657. 15. United States v. Forbes, July 13, 1992 Hearing, Case File, 1329 (Transcript, 69) (prosecutor’s question: “Would you be surprised if he set up a phony corporation with his mother’s, um, address as the corporate headquarters?”); July 15, 1992 hearing testimony of DEA Agent Philip Hart, Case File, 1420 (Transcript, 61) (“From the Colorado Department of Revenue, I found that the company had been registered in the State of Colorado as a sole proprietorship with Damon Forbes listed as the owner, in approximately December of 1988 was when it was registered”).

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16. Forbes, Testimony of DEA Agent Donald Sperry at Detention Hearing, July 15, 1992, Case File, 1398 (Transcript, 39) (“And to allay any suspicions, if the company called to verify whether it was a legitimate lab, . . . he had provided his home telephone number, and his mother . . . would answer the phone and verify that it was Isotech Labs”); Testimony of Detective Kurt Wyler, Case File, 1441 (Transcript, 52) (“[A] drug company would be able to call his mother’s residence on South Detroit Street in Denver, and [she] would act as a secretary for Damon’s . . . supposed chemical company”). 17. AET is short for alphaethyltryptamine. 18. “U.S. Bans Sales of Drug Monase,” New York Times, Mar. 21, 1962 (“Monase is a ‘psychic energizer’ drug used to stimulate depressed people, including mental patients, according to Food and Drug officials”); “Medicine: Those Risky Side Effects,” Time, Mar. 30, 1962, vol. LXXIX, no. 13 (“Last week the Upjohn Co. withdrew Monase, a ‘psychic energizer,’ after reporting to FDA that widespread use since June 1961 had produced seven cases of aplastic anemia, four of them fatal—though the drug was tested in 3,500 patients, with no sign of damage to their blood-cell mechanisms, before it was marketed”). 19. Damin Forbes letter to Sigma Chemical Company, Jan. 16, 1989, Case File, 608. (Forbes’s first name is alternately spelled “Damon,” “Damin,” and “Damian” in court-file documents.) 20. Forbes, Defendant’s Proffer in Support of Pretrial Release, July 10, 1992, 3 (Case File, 612); Detention Hearing transcript, 3–4 (Case File, 1362–63); July 15, 1992, Detention Hearing Testimony of Detective Wyler, 46–47 (Case File, 1405–06). MDMA is short for 3,4-methylenedioxymethamphetamine. 21. Controlled Substance Analogue Enforcement Act, Subtitle E of Anti-Drug Abuse Act of 1986, Public Law 99–570, Ninety-Ninth Congress, Oct. 27, 1986. 22. Drug Enforcement Administration Report of Investigation, Dec. 12, 1990, Forbes Case File, 440. Though the Forbes case has flown under the radar, Buck’s criticism of other cases and refusal to prosecute them, both as an Assistant US Attorney and later as county DA, would make headlines during his political career. Allison Sherry, “Belittled Case Drew Senate Candidate Buck a Rebuke from Boss,” Denver Post, June 23, 2010 (“Since he announced his run for the U.S. Senate, a question has dogged Republican Ken Buck’s campaign: Why, 10 years ago, did he leave a promising career as a federal prosecutor? . . . Hundreds of pages of personnel records Buck released to The Denver Post show he left his job after the U.S. attorney rebuked him for bad-mouthing a felony case to defense lawyers representing Aurora gun dealers”); Scot Kersgaard, “Suspect in 2005 Buck Case Said He Knew It Was Rape,” Colorado Independent, Oct. 12, 2010 (“[T]he rape case that Weld County DA and current U.S. Senate hopeful Ken Buck declined to prosecute in 2006 just won’t go away”). 23. Forbes Case File, 344. 24. Forbes Case File, 285.

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25. Brief in Support of Motion to Dismiss Forbes Indictment, 24 (Forbes Case File, 402), Sept. 25, 1992. 26. Forbes Case File, 954. 27. Affidavit of Frank L. Sapienza, Oct. 16, 1992, 2 (Forbes Case File, 995). 28. Federal Judicial Center, Babcock, Lewis Thornton, http://www.fjc.gov /history/judges/babcock-lewis-thornton. 29. Memorandum Opinion and Order, United States v. Forbes et al., District of Colorado, 806 F. Supp. 232, Nov. 20, 1992. 30. Memorandum of Roger Ely, Apr. 18, 1990, Forbes Case File, 596–97. 31. Testimony of Roger Ely, Forbes Case File, 1558–59 (Transcript, 49–50). 32. Testimony of Frank Sapienza, Forbes Case File, 1631 (Transcript, 122). 33. Judge Lewis Babcock, Nov. 19, 1992, hearing, Forbes Case File, 1678 (Transcript, 168). 34. United States v. Forbes et al., 806 F. Supp. 232. 35. Mike Power, “Shulgin Was Known to Many as the ‘Godfather of Ecstasy,’ ” Matters of Substance 26, no. 1 (Aug. 2014). 36. Drake Bennett, “Dr. Ecstasy,” New York Times Magazine, Jan. 30, 2005. 37. Alexander Shulgin and Ann Shulgin, PiHKAL: A Chemical Love Story (Berkeley, CA: Transform Press, 1991). 38. Shulgin and Shulgin, PiHKAL, chap. 12, and 733–39. 39. Alexander Shulgin and Ann Shulgin, TiHKAL: The Continuation (Berkeley, CA: Transform Press, 1997). 40. Shulgin and Shulgin, TiHKAL, 431–33, 490–93. Burton might not have sold LSD (see n. 1), but if it wasn’t banned in the first place, then it couldn’t have been subject to a counterfeit-sale charge. 41. Bennett, “Dr. Ecstasy” (quoting DEA’s Richard Meyer). 42. Ibid. 43. Alexander Shulgin, “The Nature of Drugs: History, Pharmacology, and Social Impact,” vol. 1, Lecture 3, Feb. 5, 1987, The Origin of Drugs: United States Drug Laws and Drug Enforcement Concepts and Agencies, 92, 94 (Berkeley, CA: Transform Press, 2021). 44. Forbes, Hearing on Defendant’s Motion for Reconsideration Re: Bond, Aug. 13, 1992, Attorney Brian Holland, Forbes Case File, 1216 (Transcript, 23) (“The exhibit that I’ve handed to the Court, and I would like the Court to take a look at it, is by Alexander Shulgin, who does work for criminal defendants and the DEA, and he spoke to this same issue. He reads the statute and says substantially similar. It’s not defined there. So it doesn’t help. It leaves it arbitrarily vague for interpretation by different chemists”). 45. Alexander Shulgin, “How Similar is Substantially Similar?,” Journal of Forensic Sciences 35, no. 1 (Jan. 1990): 8–10. 46. Ibid. 47. Ibid.

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chapter 2. frozen addicts, emergency powers 1. Dr. J. William Langston and Jon Palfreman, The Case of The Frozen Addicts: How the Solution of an Extraordinary Medical Mystery Spawned a Revolution in the Understanding and Treatment of Parkinson’s Disease (New York: Pantheon Books, 1995). 2. Ibid. MPPP is also known as Desmethylprodine. MPTP is also known as 1-methyl-4-phenyl-1,2,3,6-tetrahydropyridine. 3. Ibid., 151. 4. Jeff Lean, “Cheap, Legal, Deadly: ‘Designer Drug’ a Frightening Trend,” Chicago Tribune, Apr. 21, 1985. 5. Ibid. 6. Comprehensive Drug Abuse Prevention and Control Act of 1970, Public Law 91–53, Oct. 27, 1970. 7. Ibid. 8. Comprehensive Crime Control Act of 1984, Public Law 98–473, Oct. 12, 1984. 9. Ibid. The Supreme Court rejected a challenge to the law, brought by a New Jersey couple charged with manufacturing the stimulant Euphoria (chemical name 4-methylaminorex), which was temporarily scheduled. They argued that the law improperly gave congressional scheduling power to the attorney general, who, in turn, improperly gave that power to the DEA. The court ruled for the government on both counts. United States v. Touby, 500 U.S. 160 (1991). 10. Stephen Trott, “Implementing Criminal Justice Reform,” Public Administration Review 45, Special Issue: Law and Public Affairs (Nov. 1985), 795; Speech by James Knapp, Deputy Assistant Attorney General, Criminal Division, American Society of Criminology Annual Meeting, Clarion Hotel, Cincinnati, Ohio, Nov. 8, 1984. 11. House of Representatives Report, Ninety-Ninth Congress, 2nd Session, Rept. 99–848, Pt. 1, 4, Sept. 19, 1986. Scheduling Actions, http://www .deadiversion.usdoj.gov/schedules/orangebook/a_sched_alpha.pdf; Miles Corwin, “U.S. to Ban Use of Drug MDMA: Street Abuse Cited; Used by Psychiatrists,” Los Angeles Times, May 31, 1985. 12. Address of Edwin Meese III, San Diego Kiwanis Club, San Diego, California, Sept. 24, 1985, 6, 9, https://w w w.justice.gov/sites/default/f iles/ag /legacy/2011/08/23/09–24–1985.pdf. 13. Letter from Phillip Brady, July 10, 1985, 1, Eric Sterling Papers, Courtesy of Archives and Special Collections, American University Library. 14. Drug Enforcement Administration, Drug Scheduling, http://www.dea .gov/drug-information/drug-scheduling (“Schedule I drugs, substances, or chemicals are defined as drugs with no currently accepted medical use and a high potential for abuse. . . . Schedule II drugs, substances, or chemicals are

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defined as drugs with a high potential for abuse, with use potentially leading to severe psychological or physical dependence. These drugs are also considered dangerous”). As of fall 2022, cannabis (marijuana) is still on Schedule I. 15. See Laura Lape, “The Metaphysics of the Law: Bringing Substantial Similarity Down to Earth,” Dickinson Law Review 98: 181–82 (1994) (“[C]ourts in effect take the ‘I know it when I see it’ approach when deciding copyright infringement cases. As a result, substantial similarity and resulting infringement are found without reference to any standard to give substantial similarity meaning. . .”). 16. Brady letter, 1–2. 17. Senate Judiciary Committee Hearing, Controlled Substance Analog Enforcement Act of 1985—S. 43, Sept. 18, 1985, 1, 3.

chapter 3. dr. frankensteins 1. Howard Kurtz, “Stephen S. Trott,” Washington Post, Oct. 20, 1986. Judge Trott declined to be interviewed for this book. 2. Ibid. 3. Federal Bar profile, “Ninth Circuit Court of Appeals Judge Stephen S. Trott,” http://www.fedbar.org/idaho-chapter/wp-content/uploads/sites /37/2019/10/Judicial-Profile-Trott-pdf.pdf (“ ‘Michael Row the Boat Ashore,’ which sold over three million copies worldwide . . . was followed by ‘Cotton Fields,’ which also sold over one million copies”); William Francis Allen, Charles Pickard Ware, and Lucy McKim Garrison, Slave Songs of the United States, The Classic 1867 Anthology (New York: Dover Publications 1995), 23–24. 4. David Margolick, “Law: At The Bar; The Highwaymen Come Singing, Singing, and Much to the Chagrin of The Originals,” New York Times, Aug. 3, 1990. 5. Senate Judiciary Committee Hearing on S. 1437, Sept. 18, 1985, 19. 6. Ibid., 26. 7. Ibid., 28. 8. Ibid., 59. 9. Letter of Stephen Trott to Senate Judiciary Committee chair Strom Thurmond, Sept. 30, 1985. 10. Ibid. 11. Letter of Edwin Meese III to Jamie Whitten, Mar. 5, 1986, Designer Drugs: Hearing Before the Subcommittee on Crime of the Committee on the Judiciary, House of Representatives, Ninety-Ninth Congress, First Session, on H.R. 2014, H.R. 2977, H.R. 3936, and S. 1437, May 1, 1986. 12. Statement of Stephen S. Trott, Assistant Attorney General, Criminal Division, Before the House Judiciary Subcommittee on Crime, May 1, 1986, 1. 13. Ibid., 2.

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14. Ibid., 4. 15. Designer Drugs: Hearing Before the Subcommittee on Crime of the Committee on the Judiciary, House of Representatives, Ninety-Ninth Congress, First Session, on H.R. 2014, H.R. 2977, H.R. 3936, and S. 1437, May 1, 1986, 75. 16. Ibid. 17. Ibid. 18. Lester Grinspoon and James B. Bakalar, “A Drug Bill’s Bad Side Effects,” New York Times, Apr. 28, 1986. 19. Designer Drugs: Hearing, 111. 20. Ibid., 112. 21. Ibid., 3. 22. Ibid. 23. Sally Jenkins, “Celtics Make Bias Second Overall Pick of Draft,” Washington Post, June 18, 1986. 24. Ibid. 25. Keith Harriston and Sally Jenkins, “Maryland Basketball Star Len Bias Is Dead at 22, Traces of Cocaine Found in System,” Washington Post, June 20, 1986. 26. Mark Gladstone and Mark Heisler, “Ex-UCLA Football Star Don Rogers Dies Suddenly: Cause of NFL Player’s Death in Sacramento Is to Be Determined; He Was to be Married Today,” Los Angeles Times, June 28, 1986 (“Rogers’ death came eight days after the similarly shocking death of another young athlete, Maryland basketball player Len Bias”). 27. Craig Reinarman and Harry G. Levine, Crack in America: Demon Drugs and Social Justice (Berkeley, CA: University of California Press, 1997), 20. 28. David Farber, The War on Drugs: A History (New York: NYU Press, 2021), 54; Reinarman and Levine, Crack in America, 231. 29. Reinarman and Levine, Crack in America, 3, 20 (“When two celebrity athletes died in what news stories called ‘crack-related deaths’ in the spring of 1986, the media seemed to sense a potential bonanza”). 30. Dan Baum, Smoke and Mirrors: The War on Drugs and the Politics of Failure (Little, Brown and Company, 1996), 225. 31. Hearing Before the Subcommittee on Crime of the Committee of the House Judiciary Committee, Ninety-Ninth Congress, 2nd Session, on H.J. Res. 631, July 24, 1986, 10. 32. Congressional Record—Senate, S 14281, Sept. 30, 1986, 41. 33. Peter Kerr, “U.S. Drug ‘Crusade’ Is Seen as Undermining Itself,” New York Times, Oct. 26, 1987. 34. Phil Gailey, “War on Narcotics Emerging as Issue in Fall Campaigns,” New York Times, Sept. 9, 1986; Reinarman and Levine, Crack in America, 20 (“The crack scare began in 1986, but it waned somewhat in 1987 (a non-election year)”).

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35. Ibid. 36. Anti-Drug Abuse Act of 1986, Public Law 99–570, Oct. 27, 1986. 37. “Remarks on Signing the Anti-Drug Abuse Act of 1986,” American Presidency Project, Oct. 27, 1986, http://www.presidency.ucsb.edu/documents /remarks-signing-the-anti-drug-abuse-act-1986. 38. “President Reagan’s Remarks at Signing Ceremony for the Anti–Drug Abuse Act of 1986,” YouTube, October 27, 1986, Reagan Library, http://www .youtube.com/watch?v=gaJ8M2uZHEg. 39. Peter Kerr, “Anatomy of the Drug Issue: How, After Years, It Erupted,” New York Times, Nov. 17, 1986. 40. Ibid. 41. Farber, The War on Drugs, 54–55. 42. Hearing Before the Senate Subcommittee on Crime and Drugs, 110th Congress, 2nd Session, Feb. 12, 2008. 43. For example, testimony of DEA Chemist Terrence Boos, United States v. Carlson et al., District of Minnesota, Case No. 12–305, Sept. 26, 2013, Transcript, 1623 (“It’s a legal term”). 44. Controlled Substance Analogue Enforcement Act, Subtitle E of Anti-Drug Abuse Act of 1986, Public Law 99–570, Ninety-Ninth Congress, Oct. 27, 1986. 45. United States v. Forbes et al., 806 F. Supp. 232 (citing report). 46. United States v. Richard “Bird” Hodge and Akil Greig, Nos. 01–2198/01– 2199, U.S. Court of Appeals for the Third Circuit, 321 F.3d 429, Mar. 11, 2003.

chapter 4. creating a monster 1. State of Florida v. Charles Burton Ritchie, Case Number 90–2862-D, Escambia County Clerk of Courts Case File, 1. 2. Testimony of Ritchie, First Trial, Eastern District of Virginia, Oct. 17, 2016, Transcript, 1693. Author interview of Ritchie, Oct. 12, 2020. Author interview of Benjamin Galecki, Oct. 3, 2020. 3. Ritchie interview, Oct. 12, 2020. Author interview of Galecki, Aug. 12, 2020. 4. Galecki Sentencing, Second Trial, Eastern District of Virginia, Case No. 4:15cr18, May 31, 2017, Transcript, 27. 5. Galecki interview, Oct. 3, 2020. 6. Ibid.; Galecki Sentencing, Second Trial, 33–34 (Judge Raymond Jackson: “You were diagnosed with bipolar disease”). 7. Galecki interview, Aug. 12, 2020. 8. Ibid. Ritchie email to author, Feb. 22, 2022. Author interview of Tommy Malone Jr., May 29, 2021. 9. Ritchie Case File, 8.

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10. Author interview of Ritchie, Aug. 29, 2020. 11. Ritchie Sentencing, Second Trial, Eastern District of Virginia, May 31, 2017, Transcript, 49. Ritchie deposition, LaDue v. Talent et al., Case No. 1:14-cv01421, Sept. 10, 2015, Transcript, 10–11. 12. World Series of Poker Player Profile, Burton Ritchie, Pensacola, Florida, http://www.wsop.com/players/profile/?playerid = 119596. 13. Ivan Solotaroff, “Poker’s New World Order,” Rolling Stone, no. 976 (June 16, 2005). 14. Alexandra White, “10 Legendary Headshops,” High Times (December 2018) (featuring, among others, the Gas Pipe in Texas, which the government tried to take down with the Analogue Act [see chap. 20]). 15. Thomas Lovoy, Part 1: Have You Seen Franklin’s Tower, draft manuscript, 37. 16. Ibid., 5, 36, 121. 17. Doyle Gresham Testimony, First Trial, Eastern District of Virginia, Oct. 13, 2016, Transcript, 94–95. 18. Testimony of Ritchie, First Trial, Eastern District of Virginia, Oct. 17, 2016, Transcript, 1698. 19. Ibid. Testimony of Gresham, Third Trial, District of Nevada, Case No. 2:15cr00285, June 26, 2019, Transcript, 37. 20. Testimony of Ritchie, First Trial, Transcript, 1695. 21. Testimony of Ritchie, Second Trial, Jan. 19, 2017, 78. 22. Lovoy, Part 1: Have You Seen Franklin’s Tower, 36–37. 23. Blair Jackson, Garcia: An American Life (New York: Penguin Books, 1999), 454; Alec Foege, “Jerry Garcia: Funeral for a Friend,” Rolling Stone, September 21, 1995. 24. Lovoy, Part 1: Have You Seen Franklin’s Tower, 119; Inweekly 11, no. 40 (Oct. 21, 2010), 31; Sean Boone, “Eighteen Years and Still Going Strong, ‘Psych’ Shack Sets Bar for Local Business,” Rick’s Blog, Aug. 8, 2010. 25. Patrick Rogers, “Lethal but Legal,” People, May 1996. 26. Anne Kornblut, “An Ingredient for Disaster: Herbal Highs Can Be a Deadly Serious Danger,” New York Daily News, Apr. 28, 1996 (“Some New Yorkers who’ve tried varieties of the stimulant feel there’s little danger, despite Schlendorf’s death. ‘We didn’t even really catch a buzz,’ said [a man who] did not give his last name. He bought Herbal Ecstacy on Christopher St. and took it with two friends. ‘I’d stick with the real [ecstasy]’ ”; second brackets in original). 27. Ibid. Rogers, “Lethal but Legal.” 28. “Florida Bans Lethal Herb,” Associated Press, Apr. 26, 1996. 29. Chemistry Department Newsletter, Clemson University, Retirements, Spring 2011, John W. Huffman, http://www.clemson.edu/science/departments /chemistry/pdfs/newsletters/ChemistryNewsletterSpring2011. 30. Ibid.

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31. Ken Mackie, “Cannabinoid Receptors: Where They Are and What They Do,” Journal of Neuroendocrinology 20, no. s1 (April 2008): 10–14. 32. A. Zagzoog et al., “Assessment of select synthetic cannabinoid receptor agonist bias and selectivity between the type 1 and type 2 cannabinoid receptor,” Scientific Reports 11, no. 10611 (2021). 33. Roger Pertwee, “Cannabinoid Pharmacology: The First 66 Years,” British Journal of Pharmacology (Jan. 2006). 34. Terrence McCoy, “How This Chemist Helped Unwittingly Spawn the Synthetic Drug Industry,” Washington Post, Aug. 10, 2015. JWH-018 is short for (1-pentyl-3-(1-naphthoyl)indole. 35. Nina Notman, Obituary: John W. Huffman, Chemical and Engineering News, Aug. 19, 2022, https://cen.acs.org/people/obituaries/Obituary-John-WHuffman/100/i29 (died May 14 at age 89); Clemson newsletter (“Some of these compounds have achieved a degree of infamy due to their widespread use in synthetic cannabis, often euphemized as ‘herbal incense’. To help combat illicit use of synthetic cannabinoids, Dr. Huffman has donated a compound for training drug-sniffing dogs”). 36. Rainer Lindigkeit et al., “Spice: A Never Ending Story?,” Forensic Science International (2009): 58–63. 37. Office of National Drug Control Policy, “Synthetic Drugs (a.k.a. K2, Spice, Bath Salts, etc.), Overview and History,” https://obamawhitehouse.archives.gov /ondcp/ondcp-fact-sheets/synthetic-drugs-k2-spice-bath-salts. Federal Register notice for JWH-018 and other compounds, Nov. 24, 2010, Vol. 75, No. 226, 71636, https://www.govinfo.gov/content/pkg/FR-2010–11–24/html/2010–29600.htm. 38. “Synthetic Cannabinoids: An Overview for Healthcare Providers,” Centers for Disease Control and Prevention, http://www.cdc.gov/nceh/hsb/chemicals /sc/healthcare.html. M. Spaderna, P. H. Addy, and D. C. D’Souza, “Spicing Things Up: Synthetic Cannabinoids,” Psychopharmacology 228, no. 4 (2013), 525–40; K. Cohen et al., “Personality Traits and Psychotic Proneness Among Chronic Synthetic Cannabinoid Users,” Frontiers in Psychiatry 11 (2020): 355; Jenny L. Wiley et al., Hijacking of Basic Research: The Case of Synthetic Cannabinoids, Methods Report (RTI Press), Nov. 2011. 39. McCoy, How This Chemist Helped Unwittingly Spawn the Synthetic Drug Industry. 40. David Zucchino, “Scientist’s Research Produces a Dangerous High,” Los Angeles Times, Sept. 28, 2011. 41. Andrew Jack, “The Story of Spice,” Financial Times, Feb. 13, 2009. 42. Linda Wang, “Organic Chemist Invented a Compound in 1995 That Is Now at the Center of a Controversy Brewing over Synthetic Marijuana,” Chemical and Engineering News 88, no. 26 (June 28, 2010). 43. Eliza Gray, “The Rise of Fake Pot,” Time, April 10, 2014; Spaderna et al., “Spicing Things Up” (“Since standard urine toxicology does not test for the

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synthetic cannabinoids in Spice, it is often used by those who want to avoid detection of drug use”). 44. Centers for Disease Control and Prevention, “Synthetic Cannabinoids: What Are They? What Are Their Effects?,” http://www.cdc.gov/nceh/hsb/chemicals/sc /default.html (“Synthetic cannabinoids . . . are various manmade chemicals that some people may use as an alternative to marijuana”). 45. Spaderna et al., Spicing Things Up. 46. Justice Department Press Release, “South Florida Joint Federal/State Synthetic Marijuana Round Up Nets a Dozen Arrests,” July 26, 2012, https://www .justice.gov/archive/usao/f ls/PressReleases/2012/120726–01.html; “District Woman Sentenced for Distributing Synthetic Marijuana,” Nov. 7, 2018, http://www.justice.gov/usao-dc/pr/district-woman-sentenced-distributing-syntheticmarijuana. 47. D. Papanti et al., “Spiceophrenia”: A Systematic Overview of ‘spice’-Related Psychopathological Issues and a Case Report,” Human Psychopharmacology 28, no. 4 (July 2013): 379–89. 48. Erowid Experience Vault, “Products—Spice-Like Smoking Blends (also Spice; K2; Black Mama) Reports—General,” https://www.erowid.org/experiences /subs/exp_Products_SpiceLike_Smoking_Blends_General.shtml. 49. Earth & Fire Erowid, “Spice & Spin-offs: Prohibition’s High-Tech Cannabis Substitutes,” Erowid Extracts 16 (June 2009): 12–16. 50. Author interview of Ritchie, Mar. 25, 2020. Galecki interview, Aug. 12, 2020. 51. Galecki interview, ibid. 52. Inweekly 11, no. 40 (Oct. 21, 2010), 31. 53. Sentencing Letters of A. J. Galecki and Aly Galecki for Benjamin Galecki, Second Trial, May 31, 2017. 54. Galecki interview, Aug. 12, 2020. 55. Ritchie emails to author, Aug. 25, 2021, and Aug. 26, 2021. 56. G. Loeffler et al., “Spice, Bath Salts, and the U.S. Military: the Emergence of Synthetic Cannabinoid Receptor Agonists and Cathinones in the U.S. Armed Forces,” Military Medicine 177, 9 (Sept. 2012), 1041–48 (“Designer drugs appeal to service members for a number of reasons: they are not detected in standard military urine drug screens; they are advertised as ‘herbal’ and ‘natural,’ so they are commonly believed to be safe; they are inexpensive; and they are readily available in retail outlets like head shops and gas stations as well as online”); Lois Walsh, “Synthetic Drugs Continue to Raise Concern,” Eglin Air Force Base News, Oct. 16, 2012, https://www.eglin.af.mil/News/Article/391214 /synthetic-drugs-continue-to-raise-concern/synthetic-drugs-continue-to-raise -concern/; Eglin Public Affairs, “Updated Off-Limits List Released for Military Personnel,” Eglin Air Force Base News, Nov. 24, 2015, https://www.eglin.af .mil/News/Article-Display/Article/813820/updated-off-limits-list-released-for

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-military-personnel/ (“Psychedelic Shack, which has three locations in Pensacola, remains off limits due to the sale of narcotic analogues and drug paraphernalia”). 57. Inweekly, 11, no. 40 (Oct. 21, 2010), 31. 58. Stephen Labaton, “Federal Judge Urges Legalization of Crack, Heroin and Other Drugs,” New York Times, Dec. 13, 1989. 59. Ibid. 60. United States v. Roberts, 01Cr410, Southern District of New York, Sept. 9, 2002. 61. Ibid. 62. Ibid. 63. United States v. Todd Kelly Roberts aka “Dr. Conan” and Michael Toback, U.S. Court of Appeals for the Second Circuit, Nos. 02–1604–05, Apr. 1, 2004. 64. Southern District of New York, Apr. 14, 2005, May 10, 2005. 65. United States v. Hodge, U.S. Court of Appeals for the Third Circuit, 321 F.3d 429, Mar. 11, 2003. 66. Ibid. 67. Ibid.

chapter 5. controlling the spice 1. “Synthetic Drugs (aka K2, Spice, Bath Salts, etc.),” Office of National Drug Control Policy, https://obamawhitehouse.archives.gov/ondcp/ondcp-fact-sheets /synthetic-drugs-k2-spice-bath-salts. 2. Testimony of DEA Agent Scott Albrecht, United States v. Ritchie et al., Third Trial, District of Nevada, June 20, 2019 (Transcript, 4–128–29, 4–134). 3. For example, United States v. Michael McMahon, Statement of Facts, Eastern District of Virginia, Case No. 4:15cr18, Nov. 23, 2021; Government’s Sentencing Memorandum, United States v. Adam Libby, Southern District of New York, Case No. 1:13cr00920, 2, May 18, 2015. 4. Testimony of Albrecht; for example, Government’s Sentencing Memorandum, Libby, 4, 6; author interview of Tommy Malone Jr., May 29, 2021. 5. Ritchie testimony, Second Trial, Jan. 19, 2017, Transcript, 69–71. 6. Federal Register Vol. 76, No. 40, 11075, Mar. 1, 2011, https://www .govinfo.gov/app/details/FR-2011–03–01. 7. Ibid., 11076. 8. DEA Report of Investigation Re: Post Arrest Statement of Adam Libby, 4, Apr. 15, 2013. DEA Report of Investigation, Re: Interview of Karen Carter, 2, 6–9, Apr. 15, 2013; Galecki v. United States, No. 20–10288, U.S. Court of Appeals for the Ninth Circuit, Opening Brief of Appellant, Apr. 14, 2021, 6–9; Galecki LaDue deposition, 24.

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9. Ritchie email to author, Mar. 17, 2022. Indictment, United States v. Picanso et al., District of Kansas, Case No. 14–40005, Mar. 12, 2014; Picanso trial testimony, Feb. 15, 2017, Transcript, 111. 10. For example, Government’s Sentencing Memorandum, United States v. Ritchie et al., Third Trial, June 29, 2020, 22. 11. Champs Trade Shows, https://champstradeshows.com; Testimony of Detective Randy Dockery, United States v. Ritchie et al., Third Trial, Transcript, 78–80. 12. United States v. Daniel James Stafford, No. 15–30127, May 18, 2016. Superseding Indictment, United States v. Picanso, et al., Case No. 14–40005, District of Kansas, Mar. 12, 2014 (“Defendants and others formed the Coalition for Cognitive Liberty, later known as the Retail Compliance Association, an association ostensibly for the purpose of lobbying against the scheduling of ‘designer drugs’ ”). 13. Ibid. 14. Author interview of Malone, May 29, 2021. DEA Press Release, “Ten Indicted In Lafayette In Connection with Nationwide Synthetic Drug Takedow n,” Oct. 3, 2012, http://w w w.dea.gov/press-releases/2012/10/03 /ten-indicted-lafayette-connection-nationwide-synthetic-drug-takedown. 15. Picanso indictment (“On or about March 15, 2011, defendants . . . paid $15,000 to the Coalition for Cognitive Liberty”); author interview of Malone, May 29, 2021; author interview of Galecki, June 22, 2021. 16. Author interview of Daniel Francis, May 30, 2021. 17. “Bath Salts: A Deadly, Legal High?,” ABC News, June 4, 2011, https:// www.youtube.com/watch?v=kTYNw_2yOkI. 18. Ibid. 19. Anna Schecter and Brian Ross, “Stores Fight Proposed Federal Ban on Spice, ‘Legal Marijuana,’ ” ABC, June 1, 2011, http://abcnews.go.com/Blotter /stores-fight-proposed-federal-ban-spice-legal-marijuana/story?id=13732876. 20. Author interview of Galecki, Aug. 12, 2020. 21. Electronic Articles of Organization for Florida Limited Liability Company, Zencense Incenseworks LLC, filed Mar. 15, 2010, http://search.sunbiz.org /Inquiry/CorporationSearch/ConvertTiffToPDF?storagePath=COR%5C2010%5 C0316%5C80219558.tif&documentNumber=L10000028679. 22. Ritchie testimony, Second Trial, Jan. 19, 2017, 14. 23. Author interview of Galecki, Aug. 12, 2020. 24. Galecki LaDue deposition, Sept. 10, 2015, 8–9 (Question: “Did you use any of the schooling you just described on behalf of Zencense?” Answer: “I would say yes. I mean, engineering school really teaches you how to plan and handle complex projects”). 25. Ibid., 14. 26. Ibid., 36–37.

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27. Ritchie testimony, Second Trial, Jan. 19, 2017, 14. 28. Testimony of Robert Biggerstaff, United States v. Ritchie et al., Third Trial, June 20, 2019, Transcript, 186–87. 29. Author interview of Galecki, Oct. 3, 2020. Galecki Sentencing, Second Trial, May 31, 2017, Transcript, 32. 30. Galecki LaDue deposition, 22. 31. Government Sentencing Memorandum, Third Trial, 22. XLR-11 is short for (1-(5-f luoropentyl)-1H-indol-3-yl)(2,2,3,3-tetramethylcyclopropyl) methanone. 32. “Coca-Cola’s Formula Is at the World of Coca-Cola,” https://www.coca -colacompany.com/company/history/coca-cola-formula-is-at-the-world-of-coca -cola (“Though the actual secret formula is destined to remain a mystery to most of the world, the exhibit, ‘The Vault of the Secret Formula,’ offers insight into the intrigue behind Coca-Cola’s most closely guarded trade secret”). 33. Rainer Lindigkeit et al., “Spice: A Never Ending Story?” Forensic Science International (2009), 58–63 (“In retrospect, the trade name ‘Spice’ together with the imprinted symbol of a wide open eye seems a blatant allusion to Frank Herbert[’]s science fiction novel ‘Dune’ where the fictional drug ‘Melange’ usually is referred to as ‘[the] Spice’ and where a ‘characteristic effect of a diet high in melange wherein the whites and pupils of the eyes turn a deep blue (indicative of deep melange addiction)’ ”). 34. Bizarro, DC Characters, https://www.dc.com/characters/bizarro. 35. Ritchie email to author, Feb. 20, 2022. 36. Bizarro, DC Characters, https://www.dc.com/characters/bizarro. 37. Claude Cosey DEA Report of Investigation, July 27, 2012, 3. 38. Department of Homeland Security interview of Cory Finch, July 2, 2013, 4. 39. Ritchie LaDue deposition, Sept. 10, 2015, Transcript, 18, 40, 43. 40. Testimony of Rachel Templeman, United States v. Ritchie et al., First Trial, Oct. 7, 2016, Transcript, 79 (“It was made very clear from the beginning that we did not refer to this as a smokeable product, that it was not for human consumption, and if anybody ever asked you if they could smoke it or what happens when you smoke it on the phone, that you were to immediately end the phone call”). 41. Drug Enforcement Administration Report of Investigation, Interview of Delilah Peterson, Dec. 11, 2012; Internal Revenue Service Interview of Ray Dupree, July 2, 2013.

chapter 6. team player 1. Ritchie and Galecki Joint Memorandum on the Materiality of Dr. Arthur Berrier’s Testimony, United States v. Ritchie et al., Eastern District of Virginia,

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Case No. 4:15cr18, Aug. 21, 2018, 1–2. Testimony of Jeffrey Comparin, United States v. Gas Pipe et al., Northern District of Texas, Case No. 3:14cr00298, Aug. 23, 2018, Transcript, 4, 15–16. 2. Testimony of David Rees, Gas Pipe, Transcript, 48 (“He was the expert that was charged with doing the evaluations for his office”). Testimony of Comparin, Gas Pipe, 17 (answering “Correct” to question “But he would have been your lead expert?”). 3. Testimony of Comparin, Gas Pipe, 16. 4. Emerging Trends in Synthetic Drugs Workshop, National Institute of Standards and Technology, Apr. 30, 2013, Federal Emerging Trends, Classes and Structures of Emerging Drugs, Arthur Berrier, PhD, Senior Research Chemist, Special Testing & Research Laboratory, DEA, https://www.nist.gov/oles/emerging -trends-synthetic-drugs-workshop-presentation-slides; Classes and Structures of Emerging Drugs—Arthur Berrier, video, https://vimeo.com/256588007. 5. United States v. Gas Pipe et al., Motion to Compel Discovery, Northern District of Texas, Case No. 3:14cr00298, Feb. 21, 2018, 5. 6. See n. 2. 7. Testimony of Terrence Boos, United States v. Douglas Jason Way, Case No. 1:14cr101, Eastern District of California, Evidentiary Hearing, Feb. 13, 2018, Transcript, 24 (“The analogue committee’s comprised of Diversion Control, an operational component, a representative from our Office of Chief Counsel and Forensic Sciences”). 8. Ibid., 52–53. 9. Author interview of Berrier, Mar. 12, 2019. 10. Testimony of David Rees, Gas Pipe, 84 (“I do disagree with Dr. Berrier on several issues”). 11. Author interview of Berrier, Mar. 12, 2019. 12. See chap. 1. 13. Testimony of Berrier, United States v. Way, June 29, 2018, 119–20 (“So I reviewed over 60 of these things. I disagreed with eight”). 14. United States v. Gas Pipe et al., Case No. 3:14cr00298, document 867–1, Exhibit 57, 1, July 20, 2018. MDPV is short for 3,4-Methylenedioxypyrovalerone. 15. DEA Press Release, “Ten Arrested In New York ‘Bath Salts’ Round-Up,” June 28, 2011, https://www.dea.gov/press-releases/2011/06/28/ten-arrested -new-york-bath-salts-round. 16. United States v. Gas Pipe et al., Case No. 3:14cr00298, document 867–1, Exhibit 57, 1, July 20, 2018. 17. MDEA is short for 3,4-Methylenedioxy-N-ethylamphetamine. 18. United States v. Gas Pipe et al., Case No. 3:14cr00298, document 867–1, Exhibit 57, 9–10, July 20, 2018. 19. Ibid., 9–10, 13–14. 20. Ibid., 17.

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21. Ibid., 10. 22. Testimony of Boos, Gas Pipe, 134, 143. Testimony of Rees, Gas Pipe, 40 (“To try to work out any differences between Special Testing’s point of view and ODE’s point of view”). 23. Testimony of Boos, Gas Pipe, 132. 24. Testimony of Thomas DiBerardino, Gas Pipe, 36. 25. United States v. Roberts, 01Cr410, Southern District of New York, Sept. 9, 2002. 26. Author interview of Berrier, Mar. 12, 2019. Testimony of Berrier, United States v. Ritchie et al., Third Trial, District of Nevada, Case No. 2:15cr00285, June 25, 2019, Transcript, 152–53 (“Q: It was part of your job to do it? A: Unfortunately it was”). 27. Author interview of Berrier, Mar. 12, 2019. 28. Testimony of DiBerardino, Gas Pipe, 139. 29. Testimony of Boos, Gas Pipe, 13–37. 30. Testimony of Comparin, Gas Pipe, 40. Testimony of Thomas Duncan, Gas Pipe, 197, 214. 31. Testimony of Comparin, Gas Pipe, July 25, 2018, 41. Testimony of Rees, Gas Pipe, Aug. 23, 2018, 40-41. 32. Testimony of DiBerardino, Gas Pipe, 134–35. 33. DiBerardino Trip Report, Apr. 28, 2011. Testimony of Comparin, Gas Pipe, Aug. 23, 2018, 43. 34. United States v. Gas Pipe et al., Case No. 3:14cr00298, document 867–1, Exhibit 57, 28–30, filed July 20, 2018. 35. UR-144 is short for (1-pentyl-1H-indol-3-yl)(2,2,3,3-tetramethylcyclopropyl)methanone. 36. Ibid. 37. Testimony of Rees, Gas Pipe, Aug. 23, 2018, 59–60. 38. Testimony of DiBerardino, Gas Pipe, 158. 39. Testimony of Boos, Gas Pipe, Aug. 23, 2018, 109. Testimony of Comparin, Gas Pipe, 21. 40. Testimony of Rees, Gas Pipe, 65 (“If your opinion is that UR-144 is not substantially structurally similar to JWH-018, XLR-11 is going to fall in that same group”). 41. Author interview of Berrier, Mar. 12, 2019. 42. Gas Pipe Evidentiary Hearing, Aug. 17, 2018, Assistant US Attorney Chad Meacham, 19–20 (“This is an internal list that would give bad guys a road map [for] how to do their job better and would give defendants who are selling this stuff and causing deaths in this country an argument that they are not entitled to”). DEA witnesses have testified that anyone can call the agency and ask whether DEA considers a particular unscheduled substance to be an analogue. That’s

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somewhat true, though misleading to the extent it suggests one will receive an immediate answer, or not have to divulge personal information to learn what the law might be. The author tested this out in 2019. After digging around the DEA’s website, he found what turned out to be the right number to call and asked if a certain substance—one that was already charged in court as an analogue but wasn’t scheduled—was an analogue in the agency’s view. He was told that he had to make a written request and give a physical mailing address to receive an answer. He did so and received an answer a few weeks later, in a letter signed by Terrence Boos. “Although it is not specifically listed under the CSA,” Boos wrote, referring to the Controlled Substances Act, the substance’s chemical structure “is substantially similar to the chemical structure of substances listed in Schedule I or Schedule II.” If intended for human consumption, it “may be treated as a Schedule I controlled substance analogue,” Boos wrote. While he noted that “regulatory controls do not apply for properly sanctioned research or business activities,” Boos cautioned that the author “may wish to handle this substance as a controlled substance under the CSA.” Jordan Rubin, “America’s Secret Drug War, Calling the Designer Hotline—Is This Stuff Legal or Not?” Bloomberg Law, Aug. 2, 2019, https://news.bloomberglaw.com/interactive/americas-secret-drug-war/hotline.

chapter 7. ryan goes west 1. United States v. Galecki and Ritchie, U.S. Court of Appeals for the Ninth Circuit, Government’s Answering Brief, August 11, 2021, 19 (“Between May and July 2012, Zencense employed approximately 140 people”). 2. DEA Report of Investigation, Special Agent Mark Minten, July 26, 2012, ¶ 8. 3. Author interview of Ryan Eaton, July 20, 2021. 4. Ibid. 5. Ibid. 6. United States v. $1,002,327.00 in United States Currency and $296,746.66 in United States Currency et al., District of Nevada, Case Nos. 2:13cv100, 2:13cv947, U.S. Motion to File First Amended Complaint, Feb. 27, 2015, 4. United States v. Ritchie et al., District of Nevada, Case No. 2:15cr00285, Government Motion in Limine, Feb. 23, 2018, 2. 7. Author interview of Ryan Eaton, July 20, 2021. 8. Synthetic Drugs Fact Sheet, Office of National Drug Control Policy, Feb. 2012, https://obamawhitehouse.archives.gov/sites/default/files/ondcp/Fact_ Sheets/synthetic_drugs_fact_sheet_12–6-12.pdf. 9. DEA Press Release, “Chemicals Used in ‘Spice’ and ‘K2’ Type Products Now under Federal Control and Regulation,” Mar. 1, 2011, http://www.dea.gov

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/press-releases/2011/03/01/chemicals-used-spice-and-k2-type-products-now-underfederal-control-and. 10. Ibid. 11. Testimony of Terrence Boos, United States v. Ilan Fedida/Timothy Hummel v. United States, Case No. 8:12mj1457, Middle District of Florida, Dec. 6, 2012, Transcript, 241 (“We all of a sudden saw on the designer drug market AM-2201, a drug that’s most likely more potent than JWH-018”); Mike Power, Drugs Unlimited, The Web Revolution That’s Changing How the World Gets High (New York: Thomas Dunne Books/St. Martin’s Press, 2013), 166. AM-2201 is short for 1-(5-fluoropentyl)-3-(1-naphthoyl)indole. 12. The 112th Congress, 2nd Session, S. 3190, http://www.govinfo.gov /content/pkg/BILLS-112s3190is/pdf/BILLS-112s3190is.pdf. 13. Ibid. 14. Author interview of Ryan Eaton, Aug. 11, 2020. 15. Ibid. 16. United States v. Galecki and Ritchie, Ninth Circuit, Government’s Answering Brief, 11. 17. Ibid. (“Shipping costs totaled more than $14,000 from June to July 2012”). Special Agent Dave Behar, Report of Investigation. 18. Ninth Circuit Government Answering Brief, 15. 19. Interview Memorandum, Craig Retke to William Gammage, Apr. 22, 2016. 20. Officer’s Report, Las Vegas Metro Detective Randy Dockery, Aug. 3, 2012, 2. 21. Ibid.; Dockery testimony, United States v. Ritchie et al., Third Trial, District of Nevada, Case No. 2:15cr00285, June 18, 2019, Transcript, 81–83. 22. Dockery testimony, 89. 23. Affidavit in Support of Search Warrant, Special Agent Dave Behar, 2:12mj507, July 24, 2012, ¶ 22. 24. Ibid., ¶ 26. 25. Ibid., ¶¶ 30, 32. 26. “Synthetic ‘Bath Salts’ An Evolving Problem For DEA,” All Things Considered, National Public Radio, June 30, 2012, http://w w w.npr.org/2012 /06/30/156048262/synthetic-bath-salts-an-evolving-problem-for-dea. 27. Ibid.; see chap. 2. 28. “Synthetic ‘Bath Salts,’ ” All Things Considered. 29. Ibid. 30. For example, testimony of Scott Oulton, Gas Pipe, Aug. 17, 2018, Transcript, 45. 31. “Synthetic ‘Bath Salts,’ ” All Things Considered.

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chapter 8. summer jam (leaving las vegas) 1. Author interview of Ryan Eaton, Aug. 11, 2020. Ritchie email to author, Oct. 16, 2020. 2. Eaton interview, Aug. 11, 2020. 3. United States v. Galecki and Ritchie, U.S. Court of Appeals for the Ninth Circuit, Government’s Answering Brief, August 11, 2021, 50. 4. Eaton interview, Aug. 11, 2020. 5. Ibid. 6. Mark Minten Report of Investigation, Sept. 6, 2012. 7. Behar Report of Investigation, July 26, 2012. 8. Eaton interview, Aug. 11, 2020 9. Ibid. 10. Ibid. 11. DEA Press Release, “DEA NEWS: Nationwide Synthetic Drug Takedown; 19 Million Packets of Synthetic Drugs Seized and $36 Million in Cash,” July 26, 2012, http://www.justice.gov/sites/default/files/usao-id/legacy/2014/10/10 /dearelease07262012.pdf. 12. DEA Administrator Michele M. Leonhart, Operation Log Jam Press Conference, DEA Headquarters, Arlington, Virginia, July 26, 2012, http://www.dea .gov/sites/default/files/pr/speeches-testimony/2012–2009/120726_op-log-jam .pdf. 13. Eyder Peralta, “Amid Scandal, DEA Chief Michele Leonhart Will Retire,” NPR, Apr. 21, 2015 (quoting reporting from NPR’s Carrie Johnson that it wasn’t “the first time Leonhart has had a tough go of it with the administration. ‘Leonhart famously got taken to the woodshed by Attorney General Eric Holder after she declined to support his efforts to roll back long mandatory minimum sentences for nonviolent drug offenders,’ Carrie reports. ‘Last year she also took issue with President Obama’s comments that marijuana isn’t a dangerous substance or [is] no more dangerous than alcohol, in remarks to the sheriffs’ association. The sheriffs gave her a standing ovation but, as you can imagine, the White House did not’ ”). 14. KOIN 6 News, “DEA’s ‘Operation Log Jam’ Nets Five NW Arrests,” July 26, 2012; WPTV News, Operation Log Jam, July 26, 2012. 15. Author interview of Galecki, Aug. 14, 2020. 16. Testimony of Doyle Gresham, United States v. Ritchie et al., First Trial, Oct. 13, 2016, Transcript, 1452. 17. Author interview of Claude Cosey, July 26, 2019. 18. Ibid.; deposition testimony of Claude Cosey, United States v. $1,002,327.00 in United States Currency and $296,746.66 in United States Currency, District of Nevada, Case No. 2:13cv100, May 20, 2015, 35 (David McGee to Cosey: “Did

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they want to pursue a prosecution?” Cosey: “No.” McGee: “Did they think there was sufficient evidence of it being an analog to pursue a prosecution in this district?” Cosey: “I believe the statement was, ‘How do we know what—forget what it was. How do we prove that he knew what it was?’ ”). 19. Cosey interview. 20. Cosey deposition, 9–21. 21. Recording of call between Ritchie and Cosey. 22. Ibid.

chapter 9. come on in, cosey 1. Cosey deposition, United States v. $177,844.68, $296,746.66, District of Nevada, Case No. 2:13cv100, 5–8. 2. Cosey Report of Investigation, July 27, 2012. 3. Cosey Report of Investigation, Dec. 5, 2012. 4. Ibid.; author interview of Claude Cosey, July 26, 2019. 5. Cosey July Report. 6. Deposition testimony of Claude Cosey, United States v. $1,002,327.00 in United States Currency and $296,746.66 in United States Currency, District of Nevada, Case No. 2:13cv100, May 20, 2015, 35; Cosey interview, July 26, 2019. 7. Cosey July Report. 8. DEA Report of Investigation, Task Force Officer Christopher Farkes, interview of Karen Carter, Apr. 11, 2013, 10, ¶ 27 (noting decline in samples received for testing at AIBiotech after Operation Log Jam). 9. Ritchie LaDue deposition, 30; Templeman trial testimony, First Trial, 82. 10. Cosey Report of Investigation, Sept. 13, 2012, 3, ¶ 4. 11. Ritchie Sentencing Statement, Second Trial, 44. 12. Cosey September Report; Cosey deposition testimony, United States v. Currency, 51. 13. Testimony of Ritchie, Second Trial, 26. Galecki LaDue deposition, 69. Ritchie Sentencing Statement, Second Trial, 43. 14. Cosey Report, Sept. 13, 2012. 15. Letter from the Law Office of Timothy Dandar, Sept. 26, 2012. 16. Author interview of Teresa Woolson, Aug. 12, 2021. VOW Foundation, https://www.vow-foundation.org/about_us. 17. Charles Ellis, “Oswego County Sheriff’s Deputies Looking for Missing Man from Scriba,” Syracuse.com, Mar. 30, 2012. Charley Hannagan, “Missing Scriba Teen Found in Oneonta,” Syracuse.com, Mar. 30, 2012. 18. Woolson interview, Aug. 12, 2021. 19. Ibid.

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20. B. Rae Perryman, “Crisis Crossroads: Six Years On, Mother and Advocate Teresa Woolson Still Mourns Son’s Death,” Oswego County News Now, Aug. 10, 2018. 21. Woolson interview, Aug. 12, 2021. 22. “One Year Anniversary: Words from Loved Ones,” Victor Orlando Woolson Foundation, https://thevictororlandowoolsonfoundationinc.wordpress.com /who-is-victor-woolson/one-year-anniversary-words-from-loved-ones. 23. Government’s Sentencing Memorandum, Third Trial, June 29, 2020. 24. VOW Foundation, https://www.vow-foundation.org/about_us. 25. Woolson interview, Aug. 12, 2021. 26. Third Amendment Complaint, LaDue v. City of Talent et al., Case No. 1:14cv01421, Apr. 14, 2016, 2, ¶ 1. 27. Ibid., 13, ¶ 19. 28. Ibid., 2, ¶ 1. 29. Medford, Oregon Police Department interview with Pierce Brendan Collins, Sept. 6, 2012. 30. Jackson County, Oregon Sheriff’s Office Narrative, Sept. 5, 2012. 31. Third Amendment Complaint, 15–16. 32. Medford, Oregon Police Department Detective James Williams’s Summary Narrative, Sept. 5, 2012. 33. Ibid. 34. Ibid. 35. Ibid. Shelley LaDue Sentencing Statement, Third Trial, United States v. Ritchie et al., Sept. 9, 2020, Transcript, 80 (“We know it turned into aggravated delirium leading to heart failure”). 36. LaDue Settlement, United States District Court for the District of Oregon, 1:14-cv-01421, 2017 (consent judgment, $600,000); Woolson Settlement, New York State Supreme Court, County of Oswego, 13–1480, 2021 ($100,000). 37. Ritchie trial testimony, Second Trial, Jan. 19, 2017, Transcript, 23 (“It was getting too stressful”). 38. Testimony of Jason Way, United States v. Way, Eastern District of California, Case No. 1:14cr101, June 29, 2018, Transcript, 60. 39. Testimony of Victor Anthony Nottoli, United States v. Ritchie et al., First Trial, Oct. 11, 2016, Transcript, 917. Mr. Nottoli declined to be interviewed for this book. 40. Ibid., 920. 41. Testimony of Ritchie, Second Trial, Jan. 19, 2017, 31 (referencing Amendatory Agreement, Exhibit 5020). 42. Author interview of Galecki, Aug. 14, 2020. 43. Testimony of Jason Way, United States v. Way, Case Number 1:14cr101, June 29, 2018, 56–57.

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44. Testimony of Ritchie, United States v. Way, July 6, 2018, 52. 45. Email from [email protected], Nov. 12, 2012, 7:22 p.m., from Case 1:14cr00097, Document 62–1. 46. Jason Way. https://www.linkedin.com/in/jasonway1493/. 47. Burton Ritchie. https://www.linkedin.com/in/burtonritchie/. 48. Ritchie Objection to Pre-Sentence Report, Second Trial, May 3, 2017 (citing Amendatory Agreement). 49. Cosey Report, Nov. 19, 2012. 50. Testimony of Nottoli, First Trial, Oct. 11, 2016, Transcript, 927. 51. Florida Emergency Rule 2ER12–1, Dec. 11, 2012, Vol. 38/89, https:// www.flrules.org/Gateway/View_notice.asp?id=12381000. 52. Testimony of Ritchie, Second Trial, Jan. 19, 2017, Transcript, 38. 53. Defense Response to Government’s Omnibus Motion in Limine, 8, Third Trial, Mar. 9, 2018. 54. Government Sentencing Memorandum, United States v. Libby, 4, Southern District of New York, May 18, 2015. 55. Ibid., 5; letter from Attorney Jill Shellow to Judge Thomas Grisea, May 20, 2015. 56. Memorandum in Support of Libby’s Motion to Dismiss, 1–2, Case 1:13cr00920, Southern District of New York, May 1, 2014. 57. Nottoli cross-examination by Lloyd Snook, First Trial, Oct. 11, 2016, Transcript, 949. 58. Ibid., 952. 59. Ibid., 953–54. 60. DOJ Press Release, “Synthetic Drug Dealers with Central Valley Connection Arrested as Part of Nationwide Enforcement Operation,” May 7, 2014, https:// www.justice.gov/usao-edca/pr/synthetic-drug-dealers-central-valley-connectionarrested-part-nationwide-enforcement.

chapter 10. florida sunshine 1. United States v. Ilan Fedida, Middle District of Florida, Case No. 6:12cr209, Affidavit, ¶ 21, July 27, 2012. 2. Fedida Plea Agreement, Aug. 27, 2013. 3. Fedida Indictment, Aug. 22, 2012. 4. United States v. Assets Identified in Paragraph 1 of Verified Complaint, Middle District of Florida, Case No. 8:13cv1292, Verified Complaint, 14–15, ¶ 26, May 14, 2013. 5. See chap. 6. 6. Timothy Hummel v. United States, U.S. Court of Appeals for the Eleventh Circuit, Case No. 13–12115, Initial Brief of Hummel, June 18, 2013.

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7. United States v. Seizure Warrant, Middle District of Florida, Case No. 8:12mj0145, Oct. 17, 2012. 8. Fedida Motion to Dismiss, Oct. 3, 2012. 9. Fedida Motion to Join for Hearing Defendant’s Motion to Dismiss Indictment with Motion for Return of Property in Tampa Division, Nov. 9, 2012. 10. Author interview of Jim Felman, Aug. 30, 2021. 11. Felman bio, Kynes Markman & Felman, https://www.kmf-law.com/attorneys /james-e-felman. Fair Sentencing Act of 2010, Public Law 111–220, https://www .govinfo.gov/content/pkg/PLAW-111publ220/pdf/PLAW-111publ220.pdf. 12. Testimony of Lindsay Reinhold, United States v. Ilan Fedida/Timothy Hummel v. United States, Dec. 6, 2012, Transcript, 27–28. 13. Ibid., 29. 14. Ibid., 36. 15. Ibid., 47. 16. Boos confirmed that he received the invitation. See Testimony in United States v. Carlson et al., District of Minnesota, Case No. 12cr00305, Sept. 26, 2013, Transcript, 1630. 17. Fedida/Hummel hearing, Transcript, 48. 18. Ibid., 63–64. 19. Jennifer Frey, “Told He Can’t Play, Doering Shows He Can,” Washington Post, Dec. 28, 1995. John Romano, “Gators New Life to Doering’s Dream,” Tampa Bay Times, Sept. 9, 1993. 20. Fedida/Hummel hearing, Transcript, 191–92. 21. Ibid., 194. 22. See chap. 1, n. 43. 23. Fedida/Hummel hearing, 195–96. 24. Ibid., 200. 25. Ibid. 26. Declaration of Dr. Terrence L. Boos, United States v. Douglas Jason Way, Eastern District of California, Case No. 1:14cr00101, 1, ¶ 1, Signed Feb. 9, 2018. 27. Fedida/Hummel hearing, 230. 28. Ibid., 249. 29. Ibid., 250. 30. Ibid. 31. Ibid. 32. Ibid. 33. Ibid. 34. Ibid., 250–51. 35. Ibid. 36. The Smoke Shop LLC v. United States, Eastern District of Wisconsin, Case No. 2:12cv01186, Supplemental Response by United States, Feb. 16, 2013. 37. Letter, The Smoke Shop LLC v. United States, Dec. 14, 2012.

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38. Motion of The Smoke Shop, LLC For Return of Seized Property, Nov. 21, 2012. 39. Evidentiary Hearing, The Smoke Shop LLC v. United States and DEA, Feb. 28, 2013, Transcript, 11. 40. Ibid., 158. 41. Ibid., 203. 42. Ibid., 203–07. 43. The Smoke Shop LLC v. United States, Notice of Limited Appearance, Feb. 27, 2013. 44. Smoke Shop hearing, Transcript, 222. 45. Ibid., 226. 46. The DEA has refused the author’s requests—including requests to interview Boos—for any information it has regarding how, by 2013, Boos could have been unaware of Berrier’s and Forensic Sciences’ disagreement with Diversion Control about UR-144. 47. The Smoke Shop LLC v. United States, Supplemental Response by United States, May 17, 2013. 48. The Smoke Shop LLC v. United States, Decision and Order, Case No. 12c1186, May 21, 2013. 49. Timothy Hummel v. United States, Case No. 8:12mj1457, Memorandum of Amicus Curiae National Association of Criminal Defense Lawyers, Jan. 11, 2013. 50. United States v. Fedida, 942 F. Supp. 2d 1270 (M.D. Fla. 2013), Order, May 1, 2013.

chapter 11. information asymmetry 1. Brady v. Maryland, 373 U.S. 83 (1963). 2. Ibid. 3. United States v. Fedida, Middle District of Florida, Case No. 6:12cr209, Motion for Production of Brady Materials, May 15, 2013. 4. Fedida, Order Granting Defendant’s Motion for Release of Brady Materials, May 16, 2013. 5. Fedida, United States Motion for Clarification of Order, May 22, 2013. 6. Ibid., 4. 7. Fedida, Hearing on Motion for Clarification of Order, May 30, 2013, 2–3. 8. Ibid., 12. 9. Ibid., 15 10. Ibid., 17. 11. United States v. Fedida, Order, May 30, 2013. 12. DOJ letter to Cynthia Hawkins, July 10, 2013.

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13. United States Response Opposing Defendants Motion to Compel Production of Emails and Other Communications from DOJ Files, July 16, 2013. 14. Fedida Motion Hearing, July 19, 2013, 2–3. 15. Fedida Plea Agreement, Aug. 27, 2013. 16. Ibid. 18. United States v. Hummel, Middle District of Florida, Case No. 8:15cr215, Plea Agreement, June 23, 2015. Hummel, Judgment, Oct. 17, 2016. 19. United States v. Assets Identified in Paragraph 1 of the Verified Complaint, Judgment of Forfeiture, July 16, 2015, Order Dismissing and Releasing Non-Forfeited Assets, July 17, 2015. 20. United States v. Assets Identified in Paragraph 1 of the Verified Complaint, Middle District of Florida, Case No. 813cv1292, Motion to Dismiss or For More Definite Statement, July 16, 2013. 21. United States v. Assets, Reply to United States’ Response, Aug. 20, 2013. 22. Ibid., 2. 23. Testimony of Boos, United States v. Carlson et al., District of Minnesota, Case No. 12cr305, Sept. 26, 2013, Transcript, 1643. Testimony of Boos, United States v. Douglas Jason Way, Eastern District of California, Case No. 14cr101, Feb. 13, 2018, Transcript, 54 (of Berrier’s UR-144 dissent: “I saw it for the first time in US v. Carlson”). 24. Testimony of Boos in Carlson, 1644–45.

chapter 12. being civil—at first 1. Jordan Rubin, “America’s Secret Drug War,” Bloomberg Law, Aug. 1, 2019, http://news.bloomberglaw.com/interactive/americas-secret-drug-war /part1. 2. Lucy Morgan, “Commentary: The Life and Death of Famed Defense Attorney F. Lee Bailey, With Some FL Anecdotes,” Florida Phoenix, June 6, 2021, https://floridaphoenix.com/2021/06/06/the-life-and-death-of-famed-defenseattorney-f-lee-bailey-with-some-fl-anecdotes. 3. “F. Lee Bailey Strikes Deal in Effort to Get out of Jail,” New York Times, April 19, 1996. 4. United States v. $177,844.68 in United States Currency and $296,746.66 in United States Currency, District of Nevada, Case Nos. 2:13cv100, 2:13cv947, Jan. 6, 2015. 5. Rubin, “America’s Secret Drug War.” 6. Author interview of Benjamin Galecki, Aug. 14, 2020. Defense Response to Government’s Omnibus Motion in Limine, 6, Third Trial, Mar. 9, 2018 (McGee “interviewed them closely”).

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7. Rubin, “America’s Secret Drug War.” 8. Deposition of Claude Cosey, United States v. Currency, May 20, 2015, Transcript, 33. 9. DEA Press Release, “DEA Makes Three More ‘Fake Pot’ Drugs Temporarily Illegal Today,” May 16, 2013, http://www.dea.gov/press-releases/2013/05/16 /dea-makes-three-more-fake-pot-drugs-temporarily-illegal-today. 10. Galecki interview, Aug. 14, 2020. 11. Cosey Report, Jan. 23, 2013. 12. US Department of Justice, About OCDETF, http://www.justice.gov /ocdetf/about-ocdetf. 13. Cosey Report, Nov. 13, 2012. 14. US Department of Justice, Drug Enforcement Administration, FY 2020 Performance Budget, Congressional Budget Submission, 1. 15. Cosey Report, Jan. 23, 2013. 16. Cosey Report, Jan. 30, 2013. 17. Ibid. 18. Testimony of Jason Way, United States v. Way, Eastern District of California, Case No. 14cr101, June 29, 2018, Transcript, 161. 19. Galecki interview, Aug. 14, 2020. 20. Author interview of Ryan Eaton, Aug. 11, 2020. 21. Author interview of Kevin Pollak, Dec. 1, 2020; author interview of Samm Levine, July 27, 2021. 22. Jeff Sneider, “ ‘Freaks and Geeks’ Alum Samm Levine Joins Heretic Films as Creative Producer,” TheWrap, Sept. 21, 2015. 23. Matt Zoller Seitz, review of Low Down, directed by Jeff Preiss, RogerEbert.com, Oct. 24, 2014 (“ ‘Low Down’ is a very good jazz movie and a very good heroin movie, if indeed there’s much practical difference between the two modes—and perhaps there isn’t”). 24. Low Down (2014), Full Cast & Crew, IMDB, http://www.imdb.com/title /tt1864405/fullcredits. 25. Author interview of Ritchie, Mar. 25, 2020; Burton Ritchie, IMDB, http:// www.imdb.com/name/nm5467510. 26. Troy Moon, “Local Filmmakers Making Mark with Quality Projects,” Pensacola News Journal, June 1, 2014. 27. Pensacon, http://www.pensacon.com/info. 28. Julio Diaz, “PensacoLebowski Will Really Tie the Town Together,” Pensacola News Journal, Sept. 17, 2014. 29. Rick Outzen, “Pensacon Has $1.4 Million Impact, Set to Return Feb. 27, 2015,” Rick’s Blog, Feb. 28, 2014, https://ricksblog.biz/pensacon-has-1–4million-impact-set-to-return-feb-27–2015/. 30. “Pensacola’s Airport Goes Intergalactic,” Pensacola International Airport, http://www.f lypensacola.com/pensacolas-airport-goes-intergalactic/ (“Pensa-

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cola International Airport has partnered with Pensacon for its annual transformation into Pensacola Intergalactic Airport, assuming the temporary name and stellar decor to commemorate the 2022 Pensacon convention scheduled for February 18–20”). 31. Diaz, “PensacoLebowski Will Really Tie the Town Together” (“Ryan Eaton and Shauncey Fury of Pensacola were inspired by the success of Pensacon, the hugely successful nerd culture event that took place in February, to create this celebration of a film that they both love”). 32. “PensacoLebowski Fest Was a Big Hit,” Twitter, http://www.twitter.com /pnj/status/516653740393500672. 33. Eaton interview, Aug. 11, 2020. 34. Letter from David McGee to Assistant US Attorney Megan Rachow, Feb. 28, 2013; Defense Response to Government’s Omnibus Motion in Limine, 7, Mar. 9, 2018. 35. United States v. $177,844.68 in United States Currency and $296,746.66 in United States Currency, District of Nevada, Case Nos. 2:13cv100, 2:13cv947, Jan. 6, 2015, Hearing Transcript, 6. 36. Ibid., 5–6. 37. Order, United States v. Currency, Jan. 27, 2015. 38. Order, United States v. Currency, July 10, 2015. 39. Ibid.

chapter 13. the right to an attorney 1. Author interview of Claude Cosey, July 26, 2019. 2. Indictment, United States v. Charles Burton Ritchie et al., District of Nevada, Case No. 2:15cr285, Oct. 13, 2015. 3. Indictment, United States v. Ritchie et al., Eastern District of Virginia, Case No. 4:15cr18, Sept. 8, 2015. 4. Indictment, United States v. Ritchie and Galecki, Southern District of Alabama, Case No. 1:15cr227, Oct. 29, 2015. 5. Author interview of Galecki, Aug. 17, 2020. 6. Order, United States v. Ritchie and Galecki, Case No. 3:15mj00186, Oct. 8, 2015. 7. Government’s Motion for Disqualification of Counsel, 2, United States v. Ritchie and Galecki, Eastern District of Virginia, Nov. 10, 2015. 8. National Association of Criminal Defense Lawyers, “The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It,” 2018, https://w w w.nacdl.org/getattachment/95b7f0f5–90df-4f9f-9115– 520b3f58036a/the-trial-penalty-the-sixth-amendment-right-to-trial-on-the-vergeof-extinction-and-how-to-save-it.pdf.

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9. Defendants’ Response in Opposition to Government’s Motion for Disqualification, 3, United States v. Ritchie and Galecki, Eastern District of Virginia, Nov. 3, 2015. 10. Order, United States v. Ritchie and Galecki, Eastern District of Virginia, Nov. 24, 2015, 3 (“Each Defendant made a knowing, voluntary, and intelligent waiver of his right to conflict-free counsel”). 11. Defendants’ Response in Opposition to Government’s Motion for Disqualification, 4. 12. Government’s Reply to Defendants’ Response, 3. 13. Wheat v. United States, 486 U.S. 153 (1988). 14. Order, United States v. Ritchie and Galecki, Eastern District of Virginia, Nov. 24, 2015, 4. 15. Bond Hearing, United States v. Ritchie and Galecki, Eastern District of Virginia, Dec. 10, 2015, Transcript Part 2, 8, 16. 16. Kevin Robinson, “Federal Indictment for Pensacon CEO,” Pensacola News Journal, Oct. 7, 2015. 17. Bond Hearing, Transcript Part 1, 9, 17–18. 18. Ibid., 12–13. 19. Ibid., 17. 20. Bond Hearing Transcript Part 2, 43–44. 21. Ibid., 49–50. 22. Ibid., 53. 23. Order, United States v. Ritchie and Galecki, Eastern District of Virginia, Dec. 18, 2015. 24. Ibid., 5. 25. Devlin Barrett, “ ‘Bath Salts’ Pose a Hurdle for Prosecutors,” Wall Street Journal, Aug. 14, 2013. 26. J. Lloyd Snook III email to author. Terry Teachout, The Skeptic: A Life of H. L. Mencken (New York: HarperCollins, 2002), 125, 10 (“[A]s a social critic, [Mencken] led the charge against the sterile pseudopuritanism of Prohibitionera American culture”).

chapter 14. clarence thomas on bath salts 1. Petition for Certiorari, 7, McFadden v. United States, 14–378, Oct. 2, 2014. 2. Ibid. 3. Opinion, United States v. McFadden, US Court of Appeals for the Fourth Circuit, No. 13–4349, May 21, 2014, 4–5. 4. Ibid., 7. 5. DiBerardino Gas Pipe testimony, Northern District of Texas, Case No. 3:14cr298, Aug. 17, 2018, 129. Boos Gas Pipe testimony, Aug. 23, 2018, 113

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(“DiBerardino and myself discussed whether it would be most appropriate to compare it to Methcathinone or MDEA. A case could be made for both of them, because they contain structural features of both substances. We had in turn had arrived that we would treat it as MDEA, a comparison to MDEA. Forensic Sciences, in responding back to us, suggested we would prefer or we think it’s more closely related to Methcathinone. Internally we decided Methcathinone would be the comparative drug”). 6. Constitution Annotated, Fifth Amendment, http://constitution.congress .gov/constitution/amendment-5. 7. See chap. 1. 8. Motion to Dismiss Indictment, 1–2, United States v. Stephen Dominick McFadden, Western District of Virginia, Case No. 3:12cr00009, Dec. 26, 2012. 9. Order, United States v. McFadden, Jan. 4, 2013. 10. Justice Department Press Release, “Staten Island Man Found Guilty in Synthetic Drug Case,” Jan. 11, 2013, http://www.justice.gov/usao-wdva/pr /staten-island-man-found-guilty-synthetic-drug-case. 11. United States v. McFadden, Jan. 9, 2013, Transcript, 10–11. 12. Devlin Barrett, “ ‘Bath Salts’ Pose a Hurdle for Prosecutors,” Wall Street Journal, Aug. 14, 2013. 13. McFadden DOJ Press Release. 14. United States Courts of Appeals for the Fourth Circuit, http://www.ca4 .uscourts.gov. 15. United States Courts, “About the U.S. Courts of Appeals,” http://www .uscourts.gov/about-federal-courts/court-role-and-structure/ about-us-courts-appeals. 16. Ibid. 17. Fourth Circuit opinion, United States v. McFadden, 14–15. 18. Joan Biskupic, Janet Roberts, and John Shiffman, “The Echo Chamber,” Reuters, Dec. 8, 2014, http://www.reuters.com/investigates/special-report /scotus. 19. Supreme Court of the United States, About the Court, “The Supreme Court at Work, The Term and Caseload,” http://www.supremecourt.gov/about /courtatwork.aspx (“Each Term, approximately 7,000–8,000 new cases are filed in the Supreme Court. . . . Plenary review, with oral arguments by attorneys, is currently granted in about 80 of those cases each Term”). 20. McFadden cert. petition, 17. 21. Ibid., 12. 22. Brief for United States in Opposition, 14, 14–378, Dec. 15, 2014. 23. Brief amici curiae of Expert Forensic Scientists, 1–2, Mar. 9, 2015. 24. Ibid., 2. 25. Garrett Epps, “Too Vague to be Constitutional,” The Atlantic, Apr. 17, 2015.

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26. McFadden v. United States, Supreme Court Argument Transcript, 14–378, Apr. 21, 2015. 27. Jess Bravin, “Scalia, Breyer: High Court Polar Opposites,” Wall Street Journal, July 5, 2005. 28. McFadden v. United States, Oral Argument, Apr. 21, 2015, https://www .oyez.org/cases/2014/14–378. 29. McFadden v. United States, 576 U.S. 186 (2015). 30. King v. Burwell, 576 U.S. 473 (2015). 31. Known for rarely questioning lawyers at arguments, Thomas began doing so regularly in the COVID-19 era. The court heard arguments remotely and changed its free-for-all practice, giving designated time for each justice to ask questions. Timothy R. Johnson et al., “COVID-19 and Supreme Court Oral Argument: The Curious Case of Justice Clarence Thomas,” Journal of Appellate Practice and Process 21, no. 1 (Winter 2021). 32. McFadden v. United States, Opinion Announcement, June 18, 2015, https://www.oyez.org/cases/2014/14–378. 33. Ibid. 34. Ibid. 35. Ibid. 36. Jeffrey D. Koelemay, “Supreme Court Tosses Bath Salts Conviction But Leaves Defendant’s Lawyers Bewildered,” US Law Week, June 23, 2015, http://news.bloomberglaw.com/us-law-week/supreme-court-tosses-bath-salts -conviction-but-leaves-defendants-lawyers-bewildered. 37. Johnson v. United States, 576 U.S. 591 (2015).

chapter 15. curious animal 1. United States Court of Appeals for the Tenth Circuit, http://www.ca10 .uscourts.gov. 2. For example, Congressional Research Service report, “Judge Neil M. Gorsuch: His Jurisprudence and Potential Impact on the Supreme Court,” Mar. 8, 2017, http://sgp.fas.org/crs/misc/R44778.pdf. 3. Opinion, United States v. Makkar, Tenth Circuit, Nos. 14–5147, 14–5148, Nov. 23, 2015, 2. 4. Justice Department Press Release, “Gitter Done Store Owners Sentenced to 9 Years and 7 Years in Prison for Selling Synthetic Cannabinoids,” Nov. 21, 2014, http://www.justice.gov/usao-ndok/pr/gitter-done-store-owners-sentenced-9-yearsand-7-years-prison-selling-synthetic. DOJ’s headline says “9 Years” but Makkar’s ninety-seven-month sentence is closer to eight. 5. Adam Liptak, “Antonin Scalia, Justice on the Supreme Court, Dies at 79,” New York Times, Feb. 13, 2016.

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6. Roger Parloff, “Obama Hopes His Supreme Court Pick Is Too Moderate to Fail,” Fortune, Mar. 16, 2016, https://fortune.com/2016/03/16/obama-hopeshis-supreme-court-pick-is-too-moderate-to-fail. 7. Amita Kelly, “McConnell: Blocking Supreme Court Nomination ‘About a Principle, Not a Person,’ ” NPR, Mar. 16, 2016, http://www.npr.org/2016/03/16 /470664561/mcconnell-blocking-supreme-court-nomination-about-a-principlenot-a-person; Carl Huse, “How Mitch McConnell Delivered Justice Amy Coney Barrett’s Rapid Confirmation,” New York Times, Oct. 27, 2020 (“Before returning to Kentucky in August for the summer recess, Mr. McConnell met with senior advisers to plan for the possibility of a Supreme Court opening, aides said. They had no inside knowledge of Justice Ginsburg’s declining health, but Mr. McConnell wanted to be prepared since his colleagues would be scattered. He quickly decided that any statement should include an explicit guarantee of a vote to fill a vacancy before the end of the year. Given what happened with Judge Garland in 2016, such a pledge was certain to stoke Democratic outrage and provoke cries of hypocrisy. . . . While he could not predict that his blockade of Mr. Obama’s 2016 nominee, Judge Merrick B. Garland, would pay political dividends, the vacancy was credited with solidifying conservative support needed to elect Mr. Trump in 2016”). 8. Phillip Bump, “A Quarter of Republicans Voted for Trump to Get Supreme Court Picks—and It Paid Off,” Washington Post, June 16, 2018. 9. Frank Bruni, “Opinion: The Supreme Court Meets Reality TV,” New York Times, Jan. 31, 2017. 10. Vanessa Friedman, “On The Runway: Neil Gorsuch: A Supreme Court Nominee Who Looks the Part,” New York Times, Feb. 1, 2017 (“In the biopic of the Trump administration that will no doubt come one day, he would be played by a Paul Newman type”). 11. Emily Aronson, “Scalia: Courts’ Powers Are Limited,” Princeton University News, Mar. 8, 2008, http://www.princeton.edu/news/2008/03/08/scalia -courts-powers-are-limited. 12. Robert Smith, “Antonin Scalia’s Other Legacy,” Slate, Feb. 15, 2016, http:// www.slate.com/news-and-politics/2016/02/antonin-scalia-was-often-a-friend-ofcriminal-defendants.html. 13. Confirmation Hearing on the Nomination of Hon. Neil M. Gorsuch to be an Associate Justice of the Supreme Court of the United States, S. Hrg. 115–208, Mar. 20, 21, 22, and 23, 2017, http://www.congress.gov/115/chrg/shrg28638 /CHRG-115shrg28638.htm. 14. Gorsuch Congressional Research Service report. 15. Indictment, United States v. Ritchie et al., Eastern District of Virginia, Case No. 4:15cr00018, Sept. 8, 2015. 16. United States v. Ritchie et al., Eastern District of Virginia, Statement of Facts as to Jayson Mickle, June 27, 2016, 4, ¶ 11.

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17. Third Superseding Indictment, United States v. Ritchie et al., Eastern District of Virginia, Aug. 9, 2016. 18. Justice Department Press Release, “Father and Son Spice Traffickers Sentenced to Prison,” Mar. 30, 2017, https://www.justice.gov/usao-edva/pr/father -and-son-spice-traffickers-sentenced-prison. “Spice Retailer Placed Off-Limits to Military in Hampton Roads,” Apr. 5, 2011, 13NewsNow, https://www.13newsnow .com/article/news/local/spice-retailers-placed-off-limits-to-military-in-hampton -roads/291–375170176 (“Several businesses in four Hampton Roads cities are immediately off limits to all military personnel because they sell ‘Spice’ ”). Newport News is located in southeastern Virginia’s Hampton Roads region. 19. United States v. Ritchie et al., Eastern District of Virginia, 4:15cr00018, Sharif Abdallah sentencing position, Jan. 12, 2017, 5–6 (“He has provided significant assistance to the government in not only the prosecution of his case but also in the cases of his co-defendants, including his own father, Nader Abdallah. In fact, as the Court will remember, the government put Mr. Abdallah on the stand and he testified on behalf of the government against his father. That fact, as much as anything else, is a punishment that Mr. Abdallah will carry with him for the rest of his life and certainly long after he leaves prison”).

chapter 16. egalitarian principles 1. Eric Williamson, “The Jacksons’ Judicial Philosophy,” UVA Lawyer (Spring 2018). Judge Jackson declined to be interviewed for this book. 2. Roger Chesley, “Commanding Figure in Courtroom,” Daily Press, Nov. 24, 1997. 3. “Insight from the Bench—A Q&A with the Honorable Raymond A. Jackson, United States District Court,” Fed Tide, Newsletter of the Tidewater Chapter of the Federal Bar Association (Apr. 2014), 5. 4. Charles W. Hall, “Lawyers Defend Va. Judge Mocked by Dole,” Washington Post, Apr. 23, 1996. 5. Chesley, “Commanding Figure in Courtroom.” 6. United States Sentencing Commission, https://www.ussc.gov. 7. Ibid., “Guidelines,” https://www.ussc.gov/guidelines. 8. Kimbrough v. United States, 552 U.S. 85 (2007). 9. Ibid. 10. Petition for Certiorari, 11, Kimbrough v. United States, 06–6330, July 26, 2007. 11. United States v. Booker, 543 U.S. 220 (2005). 12. United States v. Kimbrough, Fourth Circuit, 05–4554, May 9, 2006, 2. 13. Kimbrough, 552 U.S. 85 (2007).

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14. Ibid. 15. Williamson, “The Jacksons’ Judicial Philosophy.” 16. Motion for Pretrial Ruling on Scienter Requirement, United States v. Ritchie et al., Eastern District of Virginia, Aug. 31, 2016, 1. 17. Government’s Response to Defense Motion, United States v. Ritchie et al., Eastern District of Virginia, Sept. 7, 2016, 5. 18. Memorandum Order, United States v. Ritchie et al., Eastern District of Virginia, Oct. 3, 2016. 19. Ibid.

chapter 17. a case about drug dealers 1. United States v. Ritchie et al., Eastern District of Virginia, First Trial, Oct. 4, 2016, Transcript, 2. 2. Ibid., 16; United States v. Ritchie, Oct. 5, 2016. 3. United States v. Ritchie et al., Oct. 4, 2016, 4, 33; Oct. 5, 2016, 309–10; Oct. 6, 2016, 568; Oct. 7, 2016, 734, 822. 4. United States v. Ritchie et al., Oct. 11, 2016, 949. 5. Ibid., 928. 6. Ibid., 844. 7. United States v. Ritchie et al., Oct. 7, 2016, 795–96. 8. United States v. Ritchie et al., Oct. 12, 2016, 1125–29, 1351–52; Oct. 13, 2016, 1402. 9. Ibid. Oct. 13., 1431–32. 10. Ibid., 1446–1450. 11. Ibid., 1449–50. 12. Ibid., 1453–54. 13. Oct. 17, 2016, 1694–98. 14. Ibid., 1722–23. 15. Ritchie email to author, Apr. 11, 2022. 16. Oct. 17, 2016, 1811–13. 17. Ibid., 1814. 18. Oct. 6, 2016, 398. 19. Ibid., 413–14. 20. Ibid., 457. 21. See chap. 6. 22. Oct. 14, 2016, 1504. 23. Ibid., 1573–74. 24. Ibid., 1542. 25. Oct. 19, 2016, 2082.

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26. Justice Department Press Release, Father and Son Spice Traffickers Sentenced to Prison, Mar. 30, 2017, http://w w w.justice.gov/usao-edva/pr /father-and-son-spice-traffickers-sentenced-prison. 27. Ibid. 28. Oct. 19, 2016, 2083.

chapter 18. dynamite 1. Touhy Request for Employee Testimony, from Christian Connell to US Department of Justice, Dec. 9, 2016. 2. United States ex rel. Touhy v. Ragen et al., 340 U.S. 462 (1951). Zoe Niesel, “Terrible Touhy: Navigating Judicial Review of an Agency’s Response to ThirdParty Subpoenas,” Cardozo Law Review 41, no. 4 (Apr. 2020), n. 1 (“The litigant who started it all, Roger Touhy, was an infamous Chicago crime boss who went by the nickname ‘Touhy the Terrible’ ”). 3. Brad Brekke, “Roger the Terrible: The Man the Mob Gunned Down for a ‘Frame-up’ Kidnapping,” Elk Grove Herald, Oct. 13, 1971. 4. US Department of Justice, Justice Manual, 1–6.000, DOJ Personnel as Witnesses. 5. Touhy Request, Connell, 3. 6. DOJ response to Touhy Request, Jan. 2, 2017. 7. Motion to Compel Testimony, United States v. Ritchie and Galecki, Eastern District of Virginia, Jan. 4, 2017. 8. DOJ Response to Motion to Compel Testimony, Jan. 4, 2017, 3. 9. DOJ Response to Defendant’s Motion to Compel Testimony, Jan. 4, 2017, 9. 10. Ibid., 10. 11. United States v. Ritchie et al., Eastern District of Virginia, Jan. 6, 2017, Docket Entry 641. 12. Author interview of Arthur Berrier, Mar. 12, 2019. 13. Ritchie Testimony, Second Trial, Jan. 19, 2017, 67. 14. Ibid., 78–80. 15. Testimony of Gregory Dudley, Jan. 19, 2017, 60–63. 16. Second Trial, Jan. 23, 2017, 1355. 17. Ibid. 18. George C. Thomas III and Mark Greenbaum, “Justice Story Cuts the Gordian Knot of Hung Jury Instructions,” William & Mary Bill of Rights Journal 15, no. 3 (2006–07). 19. Second Trial, Jan. 23, 2017, 1356. 20. Ibid., 1357–60.

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chapter 19. worse than crack 1. Author interview of Kevin Pollak, Dec. 1, 2020. 2. Sentencing Letters, Second Trial, filed May 24, 2017. 3. Ibid. 4. Ibid. 5. Ibid. 6. Ibid. 7. Ibid. 8. Ibid. 9. Ritchie Sentencing, May 31, 2017, 27–29. 10. Ibid., 29–32. 11. Ibid., 35–42. 12. Ibid., 43–45. 13. Ibid., 45. 14. Ibid., 45–46. 15. Ibid., 47. 16. Ibid., 49–50. 17. Ibid., 51–52. 18. Ibid., 47–48, 52. 19. Ibid., 52. 20. Galecki Sentencing, May 31, 2017, 12. 21. Ibid., 10–11. 22. Ibid., 19. 23. Ibid., 24–25. 24. Ibid., 26. 25. Ibid., 28–29. 26. Ibid., 29–30. 27. Ibid., 30–31. 28. Ibid., 33–35. 29. Ibid., 35–36. 30. Ibid., 38. 31. United States v. Terrie Adams and Craig Broombaugh, District of Kansas, Case No. 14–40005–10, Memorandum and Order, Feb. 23, 2017.

chapter 20. the defense calls arthur berrier 1. Arthur Berrier testimony, United States v. Adams and Broombaugh, District of Kansas, Case No. 14–40005–10, Mar. 1, 2017, 4.

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2. Justice Department Press Release, “Indictment: Dangerous Synthetic Drugs Were Key to $16 Million in Sales,” April 14, 2014. 3. Ibid. 4. Berrier testimony, 5. 5. Ibid., 5–7 6. Treadway later came under scrutiny for listening to attorney-client calls in a different case. Dan Margolies, “A Federal Prosecutor Listened to Multiple Attorney-Client Phone Calls, Evidence Shows,” KCUR, Oct. 12, 2018, https://www.kcur.org/news/2018–10–12/a-federal-prosecutor-listened-to-multiple -attorney-client-phone-calls-evidence-shows (“Treadway, who retired a year ago, was called to the witness stand by the Federal Public Defender on Thursday. Confronted with her own handwritten notes containing details of phone conversations between Michelle Reulet, a Leavenworth inmate who was facing drug charges, and her attorneys, Treadway offered various, sometimes contradictory explanations”). Katie Bernard and Steve Vockrodt, “Federal Judge Holds Kansas City, Kansas, U.S. Attorney’s Office in Contempt of Court,” Kansas City Star, Aug. 15, 2019, https://w w w.kansascit y.com/news/state/kansas /article233985767.html (“The investigation turned up handwritten notes kept by one assistant U.S. attorney, Tanya Treadway, that showed she listened to phone calls between Michelle Reulet, a Texas woman who was charged with mail fraud, and her various defense attorneys. . . . Treadway appeared to know what Reulet wanted from a plea negotiation—namely the opportunity to regain custody of her child before her co-defendant husband could. . . . Treadway offered Reulet a plea deal that would have Reulet finish her prison term before her husband. . . . Treadway told a federal judge during a hearing that she hadn’t listened to any of Reulet’s conversations with counsel, a denial that [the judge] called a lie when notes of the conversations surfaced during the investigation. . . . Reulet’s sentence was later vacated by a judge as a result of Treadway’s conduct”). 7. Berrier testimony in Broombaugh, 8–9. 8. Ibid., 10–11. 9. Ibid., 14. 10. Ibid., 31. 11. Ibid., 32–33. 12. Ibid., 33–35. 13. United States v. Broombaugh, District of Kansas, Case No. 14–40005–10, Memorandum and Order, June 26, 2017. 14. “Operation Safe Summer’ Nabs More Than 10 Suspected Internet Predators,” Reston Now, June 30, 2017, https://www.restonnow.com/2017/06/30 /operation-safe-summer-nabs-more-than-10-suspected-internet-predators. 15. Incident/Investigation Report, Fairfax County Police Department, Case No. 2017–1390065, 5. 16. Fairfax County Criminal Case Number 2018–0000703.

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17. Justice Department Press Release, “Gas Pipe, Inc. Smoke Shop Owner, Key Personnel and Store Managers Indicted for Roles in Massive Synthetic Drug Distribution Conspiracy,” May 15, 2015, https://www.justice.gov/usao-ndtx/pr /gas-pipe-inc-smoke-shop-owner-key-personnel-and-store-managers-indictedroles-massive. 18. United States v. Gas Pipe et al., Motion to Compel Discovery, Northern District of Texas, Case No. 3:14cr00298, Feb. 21, 2018. 19. Aug. 23, 2018, 95–96. 20. Ibid., 60. 21. Hearing testimony of Terrence Boos, Gas Pipe, Aug. 17, 2018, 14–16. 22. Ibid., 18–20. 23. The author asked the Northern District of Texas US Attorney’s Office in 2022 if it had any evidence of “bad guys” using the analogue lists as a “road map to do their job better,” as Meacham claimed at the 2018 hearing. The office didn’t provide any evidence of this, instead referring the author to the DEA, which didn’t provide any evidence either. 24. Trial testimony of Jeffrey Comparin, Gas Pipe, Oct. 4, 2018, 64–67. 25. Ibid., 67–68. 26. Jordan Rubin, “America’s Secret Drug War,” Bloomberg Law, Aug. 1, 2019, https://news.bloomberglaw.com/interactive/americas-secret-drug-war/part2.

chapter 21. their kind of person 1. U.S. Court of Appeals for the Fourth Circuit oral argument audio, available at https://www.ca4.uscourts.gov/OAarchive/mp3/17–4357–20180510.mp3. 2. While Agee and Duncan were confirmed unanimously, Shedd was confirmed 55–44. David Stout, “Parting Gift to Thurmond: Ex-Aide’s Senate Confirmation,” New York Times, Nov. 20, 2002 (“The Senate voted late Tuesday to promote a protégé of Senator Strom Thurmond to a federal appeals court, giving the 99-year-old lawmaker a farewell gift in his final hours of public life”). 3. Ibid.; Congressional Record—Senate, 27181, Sept. 30, 1986 (Thurmond remarks on drug legislation) (“I recognize Dennis Shedd [and other staffers] who contributed greatly to the success of this package”). 4. United States v. Ritchie and Galecki, Case No. 17–4357, U.S. Court of Appeals for the Fourth Circuit, Opinion, May 25, 2018. 5. Ibid.

chapter 22. bizarre relationships 1. United States v. Way, Eastern District of California, Case No. 14cr101, June 29, 2018, 18.

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2. Ibid., 113–14. 3. Ibid., 118–21. 4. Way Jury Trial, 15; Government Brief, United States of America v. Ritchie and Galecki, Fourth Circuit, No. 18–4727, Nov. 30, 2018, 11; Government’s Brief on Materiality of Dr. Arthur Berrier, Eastern District of Virginia, Aug. 21, 2018, 3–4. 5. Berrier email to author, May 4, 2022. 6. Ibid., 136. 7. Burton Ritchie testimony in Way trial, July 6, 2018, 51–52. 8. Ibid., 71. 9. Ibid., 104–5. 10. Ibid., 126. 11. Closing Arguments by Government, Way trial, 10. 12. Ibid., 16–17. 13. Ibid., 25. 14. Ibid., 75. 15. Ibid., 86–87. The Ninth Circuit upheld that civil jury’s copyright verdict, over a dissent that disagreed with the majority’s substantial-similarity approach. “While juries are allowed to rely on properly supported expert opinion in determining substantial similarity, experts must be able to articulate facts upon which their conclusions—and thus the jury’s findings—logically rely,” Judge Jacqueline Nguyen wrote. She thought the Gayes’ expert “cherrypicked brief snippets to opine that a ‘constellation’ of individually unprotectable elements in both pieces of music made them substantially similar. That might be reasonable if the constellations bore any resemblance. But Big and Little Dipper they are not. The only similarity between these two ‘constellations’ is that they’re both compositions of stars.” Williams v. Gaye, No. 16–55089, Mar. 21, 2018. 16. Sentencing, United States v. Way, Oct. 29, 2018, 54. 17. Ibid., 77. 18. Ibid., 77–78. 19. Ibid., 80. 20. Ibid., 97, 100. 21. Ibid., 100–1. 22. United States v. Nottoli, United States’ Supplemental Sentencing Memorandum, Case No. 1:14cr97, Mar. 1, 2021 (“Coconspirator Jason Way, like his codefendants, was given the opportunity to plead guilty to a significantly lower sentence, but he opted to go to trial and consistently denied wrongdoing. Way was given the opportunity to plead guilty to a Klein conspiracy with a statutory cap of five years in prison”). 23. Federal Bureau of Prisons inmate locator, https://www.bop/gov/inmateloc (full name Douglas Jason Way).

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chapter 23. tooth and nail 1. United States v. Ritchie and Galecki, Eastern District of Virginia, Case No. 4:15cr18, Memorandum Opinion and Order, Sept. 28, 2018. 2. United States v. Nader Abdallah, Case No. 17–4230, U.S. Court of Appeals for the Fourth Circuit, Opinion, Dec. 18, 2018. 3. In re: Donald Trump, Fourth Circuit Case No. 18–2486, July 10, 2019. Sharon LaFraniere, “Appeals Court Judges Appear Skeptical of Emoluments Case Against Trump,” New York Times, Mar. 19, 2019 (“During the hearing, Judge Dennis W. Shedd, the panel’s senior jurist, suggested the lawsuit seemed to seek to penalize the president for being a successful business executive. ‘You even want him fired from “The Apprentice,” don’t you,’ he said, apparently referring to reports that the president benefited from the purchase of rights for the show by government-owned foreign broadcasters”). 4. Judge Henry Floyd, Fourth Circuit biography, https://www.ca4.uscourts .gov/judges/judges-of-the-court/senior-judge-henry-f-floyd. 5. U.S. Court of Appeals for the Fourth Circuit oral argument audio, available at https://www.ca4.uscourts.gov/OAarchive/mp3/18–4727–20190319.mp3. 6. Reply Brief of Appellants, Nos. 18–4727, 18–4730, Fourth Circuit, 25, Dec. 11, 2018. 7. Fairfax County Criminal Case Number 2018–0000703. See North Carolina v. Alford, 400 U.S. 25 (1970). 8. Letter from Jim Felman to Judge Azcarate, Apr. 30, 2019. 9. Fairfax County Criminal Case Number 2018–0000703.

chapter 24. synthetic kings crowned 1. Emails to author from Ritchie and Galecki, Sept. 17, 2022. 2. Author interview of Ryan Eaton, Aug. 11, 2020. 3. National Park Service, 100 Years: Let’s celebrate!, https://www.nps.gov /subjects/centennial (“The National Park Service turned 100 on August 25, 2016, and we celebrated throughout the year with our partners and visitors across the country”). Hana Frenette, “Pensacola Couple to Visit Every U.S. National Park,” Pensacola News Journal, Apr. 30, 2016 (“To live an unhurried life—one that isn’t burdened with constant appointments, deadlines and schedules—is to live a life of freedom. In a little more than a month, newlyweds Jenn, 25, and Ryan Eaton, 33, will get a taste of that freedom”). 4. Eaton interview, Aug. 11, 2020. 5. Order Denying Motion to Require the Government to Grant Use Immunity, United States v. Ritchie et al., Third Trial, District of Nevada, Case No. 2:15cr285, June 5, 2019.

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6. Author interview of Benjamin Galecki, Aug. 18, 2020; Ritchie email to author, May 12, 2019. 7. Kenneth Schuler, “Continuing Criminal Enterprise, Conspiracy, and the Multiple Punishment Doctrine,” University of Michigan Law Review 1, no. 8 (1993)—quoting H.R. REP. No. 1444, 91st Cong., 2d Sess. 8. Justice Department Press Release, “Joaquin ‘El Chapo’ Guzman, Sinaloa Cartel Leader, Convicted of Running a Continuing Criminal Enterprise and Other Drug-Related Charges,” Feb. 12, 2019, https://www.justice.gov/opa/pr /joaquin-el-chapo-guzman-sinaloa-cartel-leader-convicted-running-continuingcriminal. 9. Narcotic and Dangerous Drugs Section (NDDS), https://www.justice.gov /criminal/ndds. 10. United States v. Ritchie et al., Third Trial, June 18, 2019, Transcript Vol. 2, 42. 11. Ibid., 43. 12. Ibid., 44. 13. Ibid., 63–65. 14. Ibid., 66. 15. David Ferrara, “2 Men Acquitted of All Charges in Bunkerville Standoff Case,” Las Vegas Review Journal, Aug. 22, 2017. 16. Third Trial, June 19, 2019, Transcript Vol. 3, 150. 17. Third Trial, June 20, 2019, Transcript Vol. 4, 107. 18. Third Trial, June 26, 2019, Transcript Vol. 8, 38–39. 19. Author interview of Claude Cosey, July 26, 2019. 20. Third Trial, June 26, 2019, 47. 21. Cosey interview, July 26, 2019. 22. Third Trial, June 26, 2019, 59. 23. Ibid., 62. 24. Ibid., 96. 25. Defense Motion, Case No. 2:15cr285, Document 282, Apr. 5, 2019. 26. Third Trial, June 25, 2019, 172–73. 27. Ibid., 175–76. 28. Ibid., 192–93. 29. Ibid., 207. 30. Author interview of Galecki, Aug. 17, 2020. Author interview of Eaton, July 21, 2020. 31. Carl Sandburg, The People, Yes, 181, Harcourt Brace & Company (1936) (“ ‘If the law is against you, talk about the evidence,’ said a battered barrister. ‘If the evidence is against you, talk about the law, and, since you ask me, if the law and evidence are both against you, then pound on the table and yell like hell.’ ‘The law,’ said the Acme Sucker Rod manufacturer who was an early Christian mayor of Toledo, Ohio, ‘The law is what the people will back up’ ”).

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32. Third Trial, July 2, 2019. 33. Ibid. 34. John Kennedy, “County’s Legislators Back Home for Recess,” South Florida Sun-Sentinel, Aug. 11, 1985. 35. Third Trial, July 2, 2019. 36. J. Lloyd Snook III, https://www.snookandhaughey.com/attorneys /j-lloyd-snook-iii. 37. Ibid. 38. Ibid. 39. Eaton interview, July 21, 2020. 40. Galecki interview, Aug. 17, 2020. 41. Eaton interview, July 20, 2021. 42. United States v. Ritchie and Galecki, Case Nos. 18–4730, 18–4727, Fourth Circuit, Opinion, July 29, 2019. 43. Ibid. 44. Ibid. 45. Ibid. 46. Ibid.

chapter 25. mandatory minimums over zoom 1. Katelyn Newberg, “COVID-19 Affects Staff, Inmates at Federal Detention Center in Pahrump,” Pahrump Valley Times, Oct. 14, 2020, https://pvtimes .com/news/covid-19-affects-staff-inmates-at-federal-detention-center-in-pahrump90607. 2. Ritchie and Galecki emails to author, Sept. 10, 2022. 3. Federal Rule of Criminal Procedure 20 lets cases transfer between districts if a defendant agrees to plead guilty in the new district and the US Attorneys in both districts approve. 4. Burton and Ben’s Legal Defense, Feb. 28, 2020, GoFundMe, https://www .gofundme.com/f/burton-and-ben. 5. Ibid. 6. Email from Charles Burton Ritchie, Guilty Pleas, Aug. 20, 2020. 7. United States v. Ritchie et al., District of Nevada, 2:15cr285, Sept. 9, 2020, Transcript, 54. 8. Ibid., 56–57. 9. Ibid., 58. 10. Ibid., 58–59. 11. Ibid., 60–61. 12. Ibid., 67–68. 13. Ibid., 68–69.

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14. Ibid., 74–75. 15. Ibid., 77–78. 16. Ibid., 80. 17. Ibid., 129. 18. Ibid., 136–37. 19. Ibid., 128. 20. United States v. Nottoli, Eastern District of California, Case No. 14–0097, Defendant’s Sentencing Memorandum, Jan. 19, 20201. 21. Ibid., Mar. 1, 2021, Minutes, Docket Entry. 22. Justice Department Press Release, “Curious Goods LLC Co-Conspirators Sentenced for Synthetic Marijuana Sales Scheme,” Dec. 16, 2014, https://www .justice.gov/usao-wdla/pr/curious-goods-llc-co-conspirators-sentenced-syntheticmarijuana-sales-scheme-0. 23. United States v. Thomas Malone, Memorandum Ruling, Case No. 12–146– 03, Western District of Louisiana, June 9, 2020. 24. Tommy Malone Jr. LLC, https://www.youtube.com/user/tommymalonejr. 25. Healinman.com, https://healinman.com; Dan Dan the Healinman, https://www.youtube.com/channel/UCKC1sF8xtap13CRQlDV9L7g.

chapter 26. devil’s advocate 1. United States Courts for the Ninth Circuit, http://www.ca9.uscourts.gov. 2. John Schwartz, “ ‘Liberal’ Reputation Precedes Ninth Circuit,” New York Times, Apr. 24, 2010; Erwin Chemerinsky, “The Myth of the Liberal Ninth Circuit,” Loyola of Los Angeles Law Review 37, no. 1 (2003). 3. Madison Alder and Andrew Wallender, “Ninth Circuit Conservatives Use Muscle to Signal Supreme Court,” Bloomberg Law, Dec. 8, 2021, http://news .bloomberglaw.com/us-law-week/ninth-circuit-conservatives-use-muscle-to-signalsupreme-court. Among the Ninth Circuit judges at the time of Burton and Ben’s appeal was Reagan appointee Stephen Trott, the former folk singer who, as a DOJ lawyer in the mid-’80s, pressed Congress to pass the Analogue Act. 4. Ritchie email to author, Apr. 19, 2021. Author interview of Galecki, Aug. 17, 2020. 5. See Liliana Segura, “Will a Federal Investigation Reveal the Truth About Deaths at USP Atlanta?” The Intercept, Aug. 14, 2022, https://theintercept .com/2022/08/14/usp-atlanta-kedric-buie-death/. 6. Author interview of Ritchie, Jan. 9, 2022; Ritchie email to author, Nov. 24, 2021. Galecki emails to author, Oct. 24, 2021, Nov. 9, 2021. 7. Galecki v. United States, Ninth Circuit Opening Brief, No. 20–10288, Apr. 14, 2021. 8. Ibid.

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9. Ibid. 10. Ibid. 11. Ritchie v. United States, Ninth Circuit Opening Brief, No. 20–10296, Apr. 14, 2021. 12. Ibid. 13. DOJ Answering Brief, Ninth Circuit Nos. 20–10288 and 20–10296, Aug. 11, 2011. 14. United States v. Juan Pablo Price, Ninth Circuit Order and Opinion, Apr. 12, 2019, Amended Nov. 27, 2020, 15. See chap. 14. 16. Ninth Circuit Oral Argument, 20–10288, http://www.youtube.com /watch?v=wWm8RAWnHLw. 17. Ibid. 18. United States v. Way, Ninth Circuit Opinion, No. 18–10427, Feb. 21, 2020.

chapter 27. latest front 1. Justice Department Press Release, “Four Men Charged for Large-Scale Distribution of Synthetic Cannabinoids Through Multiple Websites,” May 20, 2021, https://www.justice.gov/usao-sdny/pr/four-men-charged-large-scale-distributionsynthetic-cannabinoids-through-multiple. 2. For example, Alex Malyshev and Sarah Ganley, “Controlling Cannabis and the Classification of Delta-8 THC,” Reuters, Sept. 22, 2021, https://www .reuters.com/legal/litigation/controlling-cannabis-classification-delta-8-thc-2021– 09–22/ (“it is conceivable that the DEA may argue that Delta-8 THC being sold today is sufficiently similar to Delta-9 THC to constitute a ‘controlled substance analogue’ within the meaning of the Federal Analogue Act”). 3. Hearing, House Subcommittee on Oversight and Investigations of the Committee on Energy and Commerce, “Fentanyl: The Next Wave of the Opioid Crisis,” Mar. 21, 2017, 115th Congress, First Session (Rep. Tim Murphy [R. PA-18]: “America is in a full-on opioid crisis. About two decades ago, it started with the over prescribing of opioid drugs and then shifted more to heroin. Today, the subcommittee examines the next wave of the opioid crisis, an even more dangerous threat on our streets—fentanyl”). 4. Schedule of Controlled Substances: Temporary Placement of FentanylRelated Substances in Schedule I, 83 Federal Register 5188, Feb. 6, 2018, https:// www.govinfo.gov/content/pkg/FR-2018–02–06/pdf/FR-2018–02–06.pdf. 5. See chap. 3. 6. Hearing, House Committee on Energy and Commerce Health Subcommittee, “An Epidemic within a Pandemic: Understanding Substance Use and Misuse in America,” Testimony of Patricia L. Richman National Sentencing Resource

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Counsel, Federal Public and Community Defenders, Apr. 14, 2021, 4, https:// docs.house.gov/meetings/IF/IF14/20210414/111439/HHRG-117-IF14-WstateRichmanP-20210414.pdf. 7. Reagan tried to put Sessions on the bench in 1986, but the nomination was doomed by what an NPR account called his “history of racially provocative remarks.” Among other things, the nominee said (jokingly, he claimed) that he thought KKK members were OK until he learned they smoked pot. Coming in the thick of the campaign that led to the Analogue Act and the broader AntiDrug Abuse Act of 1986, Reagan Attorney General Ed Meese called Sessions’s rejection “an appalling surrender to the politics of ideology.” Ken Rudin, “Specter Helped Defeat Sessions In 1986 Judiciary Vote,” NPR, May 5, 2009, https:// www.npr.org/sections/politicaljunkie/2009/05/specter_helped_defeat_sessions .html. Lena Williams, “First Defeat on Nominee for Judgeship,” New York Times, June 6, 1986. “Sessions Nomination Blocked, CQ Almanac 1986,” 42nd ed., 75. Washington, DC: Congressional Quarterly, 1987. 8. Justice Department Press Release, “Department of Justice Announces Significant Tool in Prosecuting Opioid Traffickers in Emergency Scheduling of All Fentanyls,” Nov. 9, 2017, https://www.justice.gov/opa/pr/department-justiceannounces-significant-tool-prosecuting-opioid-traffickers-emergency. 9. Peter Baker, Katie Benner, and Michael D. Shear, “Jeff Sessions Is Forced Out as Attorney General as Trump Installs Loyalist,” New York Times, Nov. 7, 2018. 10. Mikhaila Fogel and Benjamin Wittes, “Bill Barr’s Very Strange Memo on Obstruction of Justice,” Lawfare, Dec. 20, 2018, https://www.lawfareblog.com /bill-barrs-very-strange-memo-obstruction-justice (“The memo on obstruction of justice by Bill Barr, the once and future attorney general, is a bizarre document— particularly so for a man who would supervise the investigation it criticizes. As the Wall Street Journal first reported, Barr, whom the president has nominated to succeed Jeff Sessions as attorney general, sent the unsolicited memo—dated June 8, 2018—to Deputy Attorney General Rod Rosenstein to offer his view of Special Counsel Robert Mueller’s investigation into possible obstruction of justice by the president”). 11. Drug Policy Alliance Press Release, “President Trump to Nominate William Barr as Attorney General; DPA Statement: Barr Record on Drug War and Criminal Justice Reform Is Appalling,” Statement of DPA Director of National Affairs Michael Collins, Dec. 7, 2018, https://drugpolicy.org/press-release/2018/12 /president-trump-nominate-william-barr-attorney-general. 12. William Barr, “Opinion: Fentanyl Could Flood the Country unless Congress Passes This Bill,” Washington Post, Jan. 10, 2020. 13. Nancy Gertner, “Opinion: William Barr’s New War on Drugs,” Washington Post, Jan. 26, 2020.

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14. “Biden-Harris Administration Provides Recommendations to Congress on Reducing Illicit Fentanyl-Related Substances,” White House, Sept. 2. 2021, https://www.whitehouse.gov/ondcp/briefing-room/2021/09/02/biden-harrisadministration-provides-recommendations-to-congress-on-reducing-illicit-fentanylrelated-substances/. 15. Kyle Jaeger, “After One Year as President, Biden’s Marijuana Promises Remain Unfulf illed,” Marijuana Moment, Jan. 20, 2022, https://w w w .marijuanamoment.net/after-one-year-as-president-bidens-marijuana-promisesremain-unfulfilled/. 16. Ibid. 17. Rob Portman Press Release, “Senate Passage of Temporary Extension to Keep Deadly Fentanyl-Related Substance Illegal a Positive Step, But Congress Must Pass Permanent Solution,” Apr. 29, 2021. Chuck Grassley Press Release, “Judiciary Republicans Push for Fentanyl Hearing as Deadline Nears,” Aug. 25, 2021. 18. Human Rights Watch, “More Than 140 Groups Urge White House to End Over-Criminalization of Fentanyl-Related Substances,” Aug. 24, 2021, https:// www.hrw.org/news/2021/08/24/more-140-groups-urge-doj-end-over-criminalizationfentanyl-related-substances. 19. DEA Public Information Office, “Fentanyl Deaths Climbing, DEA Washing ton C ontinues the Fight ,” Feb. 16, 2022, ht tps://w w w.dea .gov /stories/2022/2022–02/2022–02–16/fentanyl-deaths-climbing-dea-washingtoncontinues-fight (“In 2020, fatal opioid overdoses in the D.C. area surged dramatically—in some cases, to the highest levels ever recorded. Throughout 2021, these numbers only increased. And in January of 2022, the District of Columbia saw rashes of overdose deaths occurring due to ‘bad batches’ of fentanyl-laced drugs being distributed to hard-hit communities”). Zachary Siegel, “The Drug Supply is Contaminated!,” Substance, Mar. 13, 2022, https://tanag.substack .com/p/the-drug-supply-is-contaminated. 20. Letter from Law Enforcement Organizations to Senate Judiciary Committee Chair Dick Durbin and Ranking Member Charles Grassley, Mar. 17, 2021, https://www.theiacp.org/sites/default/files/Law%20Enforcement%20 Fentanyl%20Analogues%20Letter_Senate%20Judiciary_3.2021.%20.pdf. 21. Ibid. 22. Letter from Senator Cory Booker et al. to President Joe Biden, Apr. 13, 2021, https://www.booker.senate.gov/imo/media/doc/letter_to_president_ biden_fentanyl_analogue_scheduling.pdf. 23. “Prioritizing Science Over Fear: An Interdisciplinary Response to Fentanyl Analogues,” Transcript of Ohio State Law School panel, Mar. 16, 2021, https://cpb -us-w2.wpmucdn.com/u.osu.edu/dist/b/102847/files/2021/04/Fentanyl-Analogues -Transcript-Formatted.pdf.

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24. Alexander Shulgin, “How Similar Is Substantially Similar?,” Journal of Forensic Sciences 35, no. 1 (Jan. 1990): 8–10. 25. Opinion, United States v. Makkar, Tenth Circuit, Nos. 14–5147, 14–5148, Nov. 23, 2015. 26. US Government Accountability Office, Report to Congressional Addressees, Considerations for the Class-Wide Scheduling of Fentanyl-Related Substances, Apr. 2021, https://www.gao.gov/assets/gao-21–499.pdf.

outro. the story was quite clear 1. Author interview of Ryan Eaton, July 20, 2021. 2. National Institute on Drug Abuse, “What is Naloxone?,” https://nida.nih .gov/publications/drugfacts/naloxone. “Oswego County to hold NARCAN training via Zoom,” NN Y360, May 10, 2021, https://w w w.nny360.com /communitynews/healthmatters/oswego-county-to-hold-narcan-training-viazoom/article_91757418-f8bc-5296-b3eb-89aed8e724c4.html (“ ‘All community members are encouraged to learn and carry NARCAN to help save lives,’ ” according to Teresa Woolson, president of the VOW Foundation”). Naloxone is sold under the brand name Narcan. 3. Author interview of Teresa Woolson, Aug. 12, 2021.

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Index

Abbott, Travis, 68 Abdallah, Nader: as First Trial co-defendant, 104, 120, 132, 234n19; Fourth Circuit reversal of convictions, 160 Abdallah, Sharif, as cooperator in First Trial, 104, 120, 132, 234n19 acetone or other solvent, 28, 173 AET. See Forbes case (Colorado) Agee, Judge Steven, 147, 148, 161, 239 AIBiotech lab (Virginia): decline in non-Zencense samples following Operation Log Jam, 222n8; as Zencense lab, 31, 43, 50, 54, 114. See also Libby, Adam (chemist) Ailes, Roger, 16 Alabama: as Burton’s birthplace, 4; Talladega prison confinement of Burton and Ben, 184–85, 196; ZenBio call center located in, 59, 79–80, 85. See also Alabama criminal charges Alabama criminal charges: decision to plead guilty and combine all charges for sentencing in Nevada, 176–77, 178, 179, 182, 243n3; indictment, 85, 86 Albany, Joe, 80 alcohol, argument for taxing other substances like, 24–25 Alcoholics Anonymous, 29

“Alford” guilty plea, 162 Alice’s White Rabbit (Panama City, FL), 22 Alito, Justice Samuel, 99, 107 Allen charge to avoid hung jury, 125 Allen v. United States, 125 AM-2201, 42, 49, 50, 64, 110–11; scheduling of, 60, 63, 157 Ambro, Judge Thomas, 26 American Chemical Society, on conjunctive reading of Analogue Act, 13 amicus curiae (friend of the court) briefs: in Fedida case, 71–72; in McFadden case, 95–96 Analogue Act (1986): “analogue” definition in text of the law, 17–18; Congressional hearings on, 11, 12–16; demise of, Sasha Shulgin’s prediction for, 8, 195; Judge Andrew Gordon’s serious concerns about fairness of, 182; jury’s role in determining guilt under, 55, 94, 95, 97, 100, 140, 173, 185, 194, 195; Justice Department proposal for, 11; law-enforcement complaints about (2021), 193, 194, 195; passage of (in Anti-Drug Abuse Act of 1986), 16, 174. See also arbitrary enforcement permitted by the Analogue Act; due-process issues with the Analogue Act; fair

249

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index

Analogue Act (continued) warning of illegal conduct not provided by Analogue Act; human consumption, necessity to prove intention for; mens rea (guilty mind); substantially similar (Analogue Act definition); substantial similarity, lack of scientific consensus on meaning of; vagueness of the Analogue Act Anti-Drug Abuse Act (1986): crack/powder cocaine mandatory minimum sentencing disparity, 16–17, 63, 106–7; passage and signing of, 15–16; as “single most punitive law” in war on drugs, 16–17. See also Analogue Act (1986) Apparel Logo (Las Vegas), 44 arbitrary enforcement permitted by the Analogue Act: Judge Lewis Babcock on, 7; circuit split and risk of, 95; Fedida case argument regarding, 72; Sasha Shulgin on the danger of, 7–8; Judge Robert Sweet on, 25 Armed Career Criminal Act (ACCA), partially struck down for vagueness, 96, 100, 101–2 asymmetry of information, 74–75 The Atlantic, 96 Avalanche spice brand, 44, 54, 56 Azcarate, Judge Penney S., 162–63 Babcock, Judge Lewis: Forbes case dismissed by, 6–7, 93; on lack of fair warning of illegal conduct, 6–7, 72; on lack of scientific consensus, 6–7, 25, 93; as Reagan appointee, 6, 7; on vagueness as permitting arbitrary enforcement, 7 Bailey, F. Lee, 78 balance of forces between the accuser and the accused: asymmetry of information and, 74–75; Berrier testimony shifting balance to the accused, 141; and due-process issues with the Analogue Act, 186–87 Barrett, Justice Amy Coney, 233n7 Barr, William, 192–93, 246n10 bath salts: Diversion Control and Forensic Sciences in disagreement on MDPV as analogue, 35–38, 42, 92, 93, 153, 217n14, 230–31n5; NPR segment with Louisiana doctor about, 45, 49; permanent banning of compounds, 42; synthetic cathinones as chemical in, 36. See also McFadden v. United States Behar, Dave, 44, 53–54 Bell, Branden, 138, 139, 140

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Ben. See Galecki, Ben Berrier, Arthur: acknowledged as expert on novel substances, 34, 35, 145, 171, 217n2; civil-forfeiture case deposition authorized for, 84; criminal child-solicitation arrest and conviction, 141, 154, 162–63, 170–71, 172, 174; education and work history of, 34; NPR’s All Things Considered interview with, 45–46, 157; “substantially similar” not a scientific concept according to, 35; told to be a “team player,” 37–38, 93, 162; “whack-a-mole” comment about law-enforcement challenges, 46, 157; workplace investigation into alleged improprieties by, 145–46, 154–55, 157; XLR-11 not an analogue of JWH-018, 39, 62, 84, 123, 139, 152, 171–72. See also Berrier testimony; Forensic Sciences (Special Testing and Research Laboratory), review of Diversion Control monographs by Berrier; UR-144, Berrier’s dissent on analogue status of Berrier testimony: DOJ claim of deliberativeprocess privilege to deny, 122, 123, 138– 39, 148–49; Fourth Circuit appeal of denial of, 136, 146, 147–49, 150, 160; government claim of “cumulative” vs. “material” importance of, 123, 147, 149, 150, 160, 161–62, 176; in Kansas case (Judge Crabtree), 136–37, 138–40, 142, 149; Second Trial and denial of, 121–23, 136, 160, 161, 172; as shifting the balance of power to the accused, 141; in Third Trial, 161, 165, 170–72, 174. See also Berrier testimony as tainted by criminal charges or investigation into alleged workplace improprieties Berrier testimony as tainted by criminal charges or investigation into alleged workplace improprieties: and decision to combine all charges for sentencing in Nevada, 176–77; Gas Pipe case testimony of Comparin and, 145–46, 154; Third Trial and, 162–63, 170–71, 172, 174, 175; Way trial and, 151, 154–55, 157, 158, 172 Bharara, Preet, 36 Bias, Len, 15–16, 209n29 Biden, Joseph R.: and cannabis campaign pledge, 193; fentanyl-related substances ban continued under, 193–94, 247n19; Merrick Garland as Attorney General under, 193–94; on the myths resulting in

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the crack/powder cocaine sentencing disparity, 17; support for the Analogue Act, 11 Big Jerk Soda Co. (Pensacola), 198 Bizarro (antihero in Superman comics), 32 Bizarro spice brand, 2, 32, 44, 54, 56–57, 60, 68, 156, 168 Black, Lewis, 81 Black people, and the crack/powder cocaine sentencing disparity, 12, 15, 17, 105–6 Bloomberg, 100 “Blurred Lines” copyright infringement, 157– 58, 240n15 Boggs, E. Jackson, and Fedida case, 74–76 Bolt, Robert, A Man for All Seasons, 188, 189–90 Booker, Cory, 194 Boos, Terrence (DEA chemist): analysis of UR-144 as analogue, 64, 67, 69; analysis of XLR-11 as analogue, 67; and Berrier being told to be a “team player,” 37; civilforfeiture case deposition denied, 84; claiming agreement of DEA on UR-144 as analogue without reference to Berrier’s dissent, 67–68, 69, 70–71, 74, 75, 77, 142–43; claiming agreement of DEA on XLR-11 as analogue without reference to Berrier’s dissent, 69, 70–71, 142–43; claiming to have been unaware of Berrier’s dissent, 75, 77, 143; and DEA disallowing its chemists to participate in outside analogue advisory group, 64–65; downplaying Berrier’s MDPV dissent, 36–37; education and job history of, 66–67; on lack of peer review or publication of “substantial similarity” methodology, 70; on lack of scientific consensus on meaning of “substantial similarity,” 67–68, 69–70, 84; response to author’s request for analogue information, 218–19n42 Boston Celtics, 15 Boyd, Dutch, 20 Bradley, Bill, 16 Brady material (exculpatory evidence): in Fedida case, and exposure of Berrier’s UR-144 dissent, 73–76, 77; Jim Felman and exposure of alleged nationwide violation of (Gas Pipe case), 142–44 Brady v. Maryland (right to exculpatory evidence), 73 Breslow, Brandon, 188 Breyer, Justice Stephen, 94–95; and McFadden v. United States, 97, 98

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Buck, Ken, 6, 7, 205n22 Burton. See Ritchie, Charles Burton Bush, George H. W., 192; judicial appointments, 69, 99 Bush, George W.: judicial appointments, 101, 147, 161; Snook’s use of image in Third Trial, 174 Bush v. Gore, 103 1,4-butanediol, 25 Calabresi, Judge Guido: as Clinton appointee, 25; reversal of trial judge’s analogue ruling for defense, 25–26 California. See Nottoli, Victor Anthony; Way trial Caligula, 93 cannabis (marijuana): Biden’s campaign pledge to decriminalize use, 193; Delta-8 THC potentially charged as an analogue, 191, 245n3; medical-use prescriptions, 198; Barack Obama’s statement that it isn’t dangerous, 221n13; prohibition of, as motive for smoking spice, 23, 167, 213–14n56; as Schedule I substance, 193, 207–8n14; THC as binding to the body’s cannabinoid receptors, 22. See also synthetic cannabinoids Carroll, Lewis, Through the Looking Glass, 8 Carter, Jimmy, judicial appointments, 24 Casale, John, 36 cathinones. See synthetic cathinones CCE. See Continuing Criminal Enterprise CHAMPS trade shows, 29 Chicago Tribune, 10 Chiles, Lawton, 174 China, import of chemicals from: mislabeled packages, 27–28; prosecutors casting shadiness of, 110, 158, 167; by spice dealers in general, 62; by Zencense, 43, 54 China White, 14 class-wide scheduling of fentanyl-related substances (2018): civil-rights issues in opposition to, 192, 193–94; Democrats effectively endorsing the Analogue Act in opposition to, 194–95; effects of chemicals not taken into account in, 192; scientific research as hampered by, 192 Clemson University, 22 Cleveland Browns, 15 Clinton, Bill: judicial appointments, 25, 26, 97, 102–3, 105–6, 187, 193; Snook’s use of image in Third Trial, 174

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Clinton Foundation poker tournament, 80 Clinton, Hillary, 103 closing arguments, adage about, 172, 242n31 Coalition for Cognitive Liberty (wholesalers’ trade association), 29, 183, 215nn12,15 Coca-Cola, secret formula of, 32 cocaine. See crack-cocaine Collins, Judge Daniel, 187–90 Colorado US Attorney’s Office: and Ken Buck’s refusals to prosecute and criticism of cases, 6, 205n22. See also Forbes case Comparin, Jeffrey: and Berrier’s credibility, government attack on, 145–46, 154; and Berrier’s disagreement on UR-144, 39, 145; and Diversion Control telling Berrier to be a “team player,” 37–38; on NPR’s All Things Considered segment, 46; testimony in Kansas Broombaugh case, 139–40 Comprehensive Crime Control Act (1984): challenge to scheduling system rejected (1991 Touby case), 207n9; class-wide scheduling of fentanyl-related substances, 191–94, 247n19; emergency, temporary drug-scheduling power provided by, 10; passage of, 10; substances temporarily scheduled under, 10, 14, 28, 42, 71, 79; viewed as insufficient by the government, 10. See also Analogue Act (1986) conflict of interest, McGee and Miller removed as counsel on claim of, despite defendants’ waiver of potential conflict, 86–88 conjunctive (both structure and effect) vs. disjunctive (either structure or effect) reading of the Analogue Act, 13, 17–18, 26, 188–89, 192 Connell, Christian, as lawyer for Ben: First Trial, 88–89, 90; Second Trial, 121–22, 134; Fourth Circuit appeal, 147, 148; Third Trial, 165. See also specific trials and appeals by name consensus, lack of. See substantial similarity, lack of scientific consensus on meaning of Continuing Criminal Enterprise (CCE): circuit split on acquitted co-defendants counting as supervisees, 186, 187; “El Chapo” Guzman convicted under, 166; Gas Pipe case and unsuccessful charges as, 165; Ninth Circuit appeal seeking reversal of charges on, 185–86, 187; Third Trial (Nevada District) charges under, 165–66, 175, 182, 185–86

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Controlled Substance Analogue Enforcement Act of 1986. See Analogue Act Controlled Substances Act (1970): cannabis as Schedule I, 193, 207–8n14; fentanyl as Schedule II drug used in hospitals, 192; fentanyl-related substances as Schedule I, and scientific and civil rights concerns, 192; proving knowledge under, 99; Schedule I, defined, 207–8n14; Schedule II, defined, 207–8n14; time lag in scheduling drugs in compliance with, 10. See also Analogue Act (1986); Comprehensive Crime Control Act (1984) cooperating witnesses: in First Trial, 103–4, 110–11, 120, 132, 234n19; Ninth Circuit appeal addressing issue as imbalance of power, 186–87; Tony Nottoli as, 60–61, 110–11, 183 copyright law, “substantial similarity” used in, 11, 157–58, 208n15, 240n15 Cosey, Claude (DEA Special Agent): background and job history of, 53, 169; barred from testifying by Judge Jackson, 108–9, 111–12, 176; Burton’s discussion with and provision of spice samples to, following the DEA raid (25 July 2012), 2, 49–52, 59, 169, 186; Burton’s offer to shut down Zencense if Cosey thought they were breaking the law, 54, 79; continued interest to arrest Burton and Ben, 49–50, 54, 55, 79–80, 85, 221–22n18; deposition in Nevada civil-forfeiture case, 79; Doyle Gresham as directing Burton to, 49, 113, 168; Third Trial testimony of, 165, 169–70, 186; visit to Psychedelic Shack locations for surveillance (25 July 2012), 53–54; visit to Zencense to obtain samples from Burton (26 July 2012), 2, 53, 54, 169. See also criminal investigation of Burton and Ben; reliance on expert advice to comply with the law, as defense COVID-19 pandemic: Burton and Ben contracting the disease, 178; court procedures via video due to, 179–80, 188; deaths of inmates during, 178 Crabtree, Judge Daniel, 137, 139, 140, 151 crack-cocaine: crack/powder mandatory minimum sentencing disparity, 16–17, 63, 106–7; panic after cocaine-related deaths, 15–16, 209n29 Crews, Linda Jean (mother of Burton Ritchie), 4, 128, 166, 180

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criminal investigation of Burton and Ben: codename: Operation Bizarro, 79; cooperation with Cosey as helpful for bail initially, 86; Cosey’s continued interest in, 49–50, 54, 55, 79–80, 85, 221–22n18; delays in the civil-forfeiture case due to, 83–84; indictments brought, 85–86, 88; initial bail hearing in Pensacola, 86; innocence as continued assertion by Burton and Ben, 86; intentions of the government to flip Ben against Burton, 86; as Priority Target Organization, 79; seizure of assets, 87. See also Alabama criminal charges; First Trial (Eastern District of Virginia); Second Trial (retrial in Eastern District of Virginia); Third Trial (District of Nevada) Dalton, Judge Roy “Skip”: and Fedida case, 63, 68, 72, 73–75, 76; as Obama appointee, 63 Dandar, Timothy (lawyer): dispute over testimony for Burton and Ben, 165, 186; letter advising he didn’t think Zencense was breaking the law, 55, 155; practice advising spice businesses, 55 DEA (Drug Enforcement Administration): Analogue Committee, 35, 37, 217n7; denial of permission for its chemists to participate in analogue advisory group, 64–65; refusal of author’s requests for information relating to Boos’s knowledge of Berrier’s disagreement on UR-144, 226n46; scandal involving agents in Colombia, 49, 221n13; US Attorneys’ Offices as looking to the DEA for guidance and relying on expert testimony at trials, 34. See also deliberative-process privilege, invoked in attempt to keep Berrier dissent secret; Diversion Control, DEA Office of; Forensic Sciences, DEA Office of; Justice Department/DEA press releases and conferences; Operation Log Jam (2012); secrecy of analogue decisions taken by DEA; seizure of cash and assets by DEA deliberative-process privilege, invoked in attempt to keep Berrier dissent secret: attempts to block Berrier testimony, 122, 123, 138–39, 148–49; and Fedida case disclosure, 76 Delta-8 THC, 191, 245n2 Demerol, 9

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Democrats: opposition to class-wide fentanyl scheduling and effective endorsement of the Analogue Act, 193–95; support for the Analogue Act, 11, 15–16 designer drugs: coined as term, 9–10; DOJ definition of, 11; rejection of term, 14. See also Analogue Act (1986) Detoxify, 58 DiBerardino, Thomas (DEA chemist): disregarding disagreement from Forensic Sciences, 38; and MDPV monograph disagreement, 37, 38; telling Berrier to be a “team player,” 37–38, 93, 162; testimony in McFadden case, 93–94, 96; testimony in Roberts case, 37 disjunctive (either structure or effect) vs. conjunctive (both structure and effect) reading of the Analogue Act, 13, 17–18, 26, 188–89, 192 Diversion Control, DEA Office of: as the authority within the DEA to say whether a substance is an analogue, 35, 39, 89, 154; downplaying Berrier’s role in analogue decisions, 89, 119, 122–23, 152–54; Forbes case testimony for the government, 6, 35; monograph reports on potential analogues sent to Forensic Sciences for review by Berrier, 35. See also Boos, Terrence; Forensic Sciences, DEA Office of; Forensic Sciences (Special Testing and Research Laboratory), review of Diversion Control monographs by Berrier; UR-144, Berrier’s dissent on analogue status of Doering, Paul, 65–66 DOJ. See Justice Department Dole, Bob, 106 Drozd, Judge Dale, 151–54, 156, 158–59, 183. See also Way trial Drug Policy Alliance, 192 drug tests: sale of products that help people pass, 20, 58, 196; spice products not detectable in, as motive for smoking, 23, 24, 212–14nn43,56 Dudley, Gregory (chemist testifying against analogue status of UR-144): First Trial testimony, 119–20; government attacking, for financial incentive, 120, 124–25, 161; Second Trial testimony, 124–25; Smoke Shop testimony, 69; standing by in Fedida case, 69, 119; Third Trial testimony, 170 due process: defined by the Fifth Amendment to the Constitution, 93; Forbes case dismissal citing, 93; Johnson v. United

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due process (continued) States as partially striking down Armed Career Criminal Act on grounds of, 96, 100, 101–2, 103. See also Brady material (exculpatory evidence); due-process issues with the Analogue Act due-process issues with the Analogue Act: Gorsuch on, 101–2; McFadden v. United States and, 93, 95, 102, 188; Ninth Circuit appeal and, 185, 186–87; Second Circuit reversing trial-court ruling finding (Roberts case), 25–26. See also arbitrary enforcement permitted by the Analogue Act; fair warning of illegal conduct not provided by Analogue Act; vagueness of the Analogue Act Duncan, Judge Allyson, 149, 161, 239n2 Duncan, Thomas, 37–38 Eaton, Ryan: acquittal in Third Trial, 175, 186, 187, 198; in the aftermath, 198; as assistant post-Zencense to Ben and then Burton, 80; Big Jerk Soda Co. venture, 198; Burton’s apology to, 48; as codefendant in the Third Trial (Las Vegas), 164–65, 166–67, 168, 169, 174, 175; continued belief that Zencense had never broken the law, 83; detention and release of (Operation Log Jam), 47–48, 53–54; education and background of, 41–42; indictment and pretrial supervision of, 164–65; living situation in Las Vegas, 43, 47; National Parks tour of, 164–65, 241n3; parents of, 166; PensacoLebowski, 81–82, 229n31; refusing to flip on Burton and Ben, 83, 164; surveillance by the DEA of, 44; and wife (Jenn), 164– 65, 198, 241n3. See also Las Vegas Zencense warehouse Ecstasy. See MDMA (Ecstasy) “effects prong” of Analogue Act, 14, 17–18, 66, 72, 192; conjunctive (both structure and effect) vs. disjunctive (either structure or effect) reading of, 13, 17–18, 26, 188– 89, 192. See also substantially similar (Analogue Act definition) Ely, Roger (DEA chemist), 6, 35 emergency, temporary scheduling. See Comprehensive Crime Control Act (1984) Ensley, Mike, and Pensacon, 82 entrapment by estoppel defense, 108–9. See also reliance on expert advice to comply with the law, as defense

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ephedrine, 22 Epps, Garrett, 96, 100 Erowid, 23 Escobar, Karen, 152, 153, 154–56, 157–58 Euphoria, 207n9 exculpatory evidence. See Brady material Fair Sentencing Act (2010), 63 fair warning of illegal conduct not provided by Analogue Act: Judge Lewis Babcock on, 6–7, 72; Fedida case argument regarding, 72; Judge Andrew Gordon on, 182; Hummel case argument for Analogue Act as attack on mens rea, 77; Libby case and losing argument for, 60; Ninth Circuit appeal and issue of, 185, 189; Judge Robert Sweet on, 25 federal appeals. See U.S. Courts of Appeals federal district courts. See First Trial (Eastern District of Virginia); Second Trial (retrial in Eastern District of Virginia); Third Trial (District of Nevada) Federal Register: overview, 28; first five synthetic cannabinoids in, 28; scheduling notices and orders published in, 28; secrecy of analogue decisions taken by Diversion Control, 40 Fedida case: analogue status of UR-144 as issue, 62–68, 143; Berrier’s dissent on UR-144 disclosed following motion for Brady material, 73–76, 77; dismissal of analogue charges, 76; motion to dismiss criminal charges (joint hearing with Hummel), 63–68, 72; National Association of Criminal Defense Lawyers brief filed to hold the Analogue Act void-forvagueness, 71–72; plea agreement/sentencing on lesser charge, 76; vagueness of the Act as issue, 63, 64, 65–66, 70, 71–72, 96. See also UR-144, Berrier’s dissent on analogue status of Fedida, Ilan, 62. See also Fedida case Felman, Jim (lawyer): on the Analogue Act as attack on principle of mens rea, 77, 185; as Analogue Act expert, 141; and Berrier’s dissent on UR-144, Fedida case and disclosure of, 75, 76, 77; and Berrier’s dissent on UR-144, Gas Pipe case and exposure of alleged widespread Brady violations, 141, 142–44; and Boos testimony claiming DEA agreement on UR-144 (and XLR-11) that did not reference Berrier dissent, 67–68, 70–71, 75,

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77, 142–43; and the Hummel case outcome, 76, 77; involvement in the reduction of crack/powder cocaine sentencing disparity, 63; and joint hearing in Fedida and Hummel cases, 63–64, 65, 67–68; as “Mr. Analogue,” 146, 178; and Ninth Circuit appeal, 178, 183, 184–86, 187, 188–90; and secret lists of analogues, release of, 144–45; sentencing letter written for Berrier, 162; and the Smoke Shop hearing, 69–71, 75, 77. See also Gas Pipe case; Ninth Circuit appeal fentanyl (synthetic opioid): and the opioid crisis, 191, 194, 245n3, 247n19; as Schedule II drug used in hospitals, 192. See also fentanyl analogues fentanyl analogues: class-wide scheduling of fentanyl-related substances, 191–95, 247n19; and DOJ argument for the Analogue Act, 14; fentanyl-related substances under Schedule I, raising scientific and civil rights concerns, 192, 193–94; scheduled using temporary emergency powers, 10, 14 Fifth Amendment. See due process Fight Club (Palahniuk), 111 film success of Burton and Ben: First Trial bail hearing referring to, 88, 90; Heretic Films production company, 80–81, 81, 228n23; Second Trial sentencing referring to, 132, 135 financial crisis of 2007–08, 24 Financial Times, 23 First Trial (Eastern District of Virginia): Sharif Abdallah cooperating, 104, 120, 132, 234n19; analogue status of XLR-11 as issue, 118–20; bail hearing and release, 88–91, 108; Berrier’s UR-144 dissent as issue in, 89, 90, 118–19; Burton’s testimony, 113–18; co-defendant Nader Abdallah, 104, 120, 132, 234n19; communication with Cosey as issue, 88–89, 90, 108–9; cooperator testimony, 103–4, 110–11, 120, 132, 234n19; Cosey barred from testifying, 108–9, 111–12; court-appointed attorneys, 87, 88; “dirty money” allegations, 90; drug dealing as focus of prosecution, 110; “entrapment by estoppel” defense denied by Judge Jackson, 108–9, 111–12, 114– 15; government intention for Ben to flip on Burton, 86–87, 88; Gresham testimony on their openness with law enforce-

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ment, 112–13; and human consumption issue, 108; hung jury in, 120; indictment, 85–86; innocence as continued assertion by Burton and Ben, 87; McGee barred from testifying, 112; McGee removed as counsel by the court (pretrial), 86–88, 112; and money issues due to seizure of assets, 87; poker playing as issue, 115– 16; science-fiction (Dune) as issue, 116– 18; Smoke Shop case cited in, 89; travel restrictions imposed in bond ruling, 90–91. See also Second Trial (retrial in Eastern District of Virginia) flavoring additions (called “fragrance”), 28, 32 Florida: ban on herbal ecstasy, 22; ban on XLR-11, 59, 79–80; Pensacola-area US Attorney’s Office hesitant to use the Analogue Act to prosecute Zencense, 49–50, 54, 85, 221–22n18. See also Fedida case Floyd, Judge Henry Franklin, 161 Food and Drug Administration (FDA): charges related to, 14, 86; regulation and spice industry, 27, 30 Forbes case (Colorado): AET and the Analogue Act, 5–6, 7, 8, 72, 205nn17–18, 206n44; business owned by Damon Forbes (Isotech Labs), 5, 204–5nn15–16; cited by defendants, 24; dismissal of case, 6–7, 93 Forbes, Damon. See Forbes case Forensic Sciences, DEA Office of: deference to Berrier’s opinions, despite any disagreement, 35, 38, 217n10; Emerging Trends lab prompted by Berrier, 34, 171; Forbes case testimony for the defense, 6, 35; UR-144 dissent never communicated in writing back to Diversion Control, 39, 76, 145. See also Diversion Control, DEA Office of; Forensic Sciences (Special Testing and Research Laboratory), review of Diversion Control monographs by Berrier Forensic Sciences (Special Testing and Research Laboratory), review of Diversion Control monographs by Berrier: agreement with Diversion Control’s conclusions in the vast majority of cases, 35, 38, 154, 217n13; Berrier acknowledged as lab’s expert in novel substances, 34, 35, 145, 171, 217n2; Berrier investigated due to alleged improprieties in workplace, 145–46, 154–55, 157; Berrier’s dislike of conducting analogue reviews, 35, 37,

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Forensic Sciences (continued) 123; Berrier told to be a “team player,” 37–38, 93, 162; deference of Forensic Sciences to Berrier’s opinions, despite any disagreement, 35, 38, 217n10; disagreement with Diversion Control’s conclusions as not welcome, 35, 36–38, 46, 62; government downplaying Berrier’s role in analogue decisions, 89, 119, 122–23, 152–54; MDPV dissent (2011), 35–38, 92, 93, 153, 230–31n5; process of receiving and returning reports, 35, 75–76; written dissents, DEA instructing Berrier to cease production of, 39. See also UR-144, Berrier’s dissent on analogue status of forfeiture of assets: Fedida case outcome, 76; Hummel case outcome, 76; Makkar case and, 101; Tony Nottoli cooperating with the government partly in exchange for promise to forgo, 61. See also Nevada civil-forfeiture case against Burton and Ben; seizure of cash and assets by DEA Fourth Circuit Court of Appeals: Nader Abdallah convictions reversed, 160; Kimbrough case, 107; McFadden case, 94, 95, 98, 99; rationale that prosecutors only have to prove intent for human consumption under Analogue Act, as struck down, 95, 97, 99; when lawyers are told who their panel of judges is, 187. See also Fourth Circuit appeal (first); Fourth Circuit appeal (second) Fourth Circuit appeal (first): Berrier testimony as issue, 147, 149, 150, 160; Berrier testimony denial as issue, 136, 146, 147–49; Cosey testimony denial as issue, 148; panel of judges, 147, 239nn2–3; swift finding for Burton and Ben sending the case back to Judge Jackson, 149–50, 160. See also Second Trial (retrial in Eastern District of Virginia) Fourth Circuit appeal (second): Berrier testimony as issue, 161–62, 176; Berrier testimony as tainted, and decision to combine all charges, 176–77; convictions intact while awaiting ruling, and confinement during Third Trial (Nevada), 165; convictions vacated and remanded to Judge Jackson for third trial in Virginia, 176–77; Cosey testimony exclusion upheld by, 176; filing of, 160; Gorsuch Makkar opinion distinguished, 176;

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lengthier wait for ruling, 162; McGee testimony exclusion vacated, 176; panel of judges, 160–61; request to remove Judge Jackson from the case, and denial, 162, 165, 176–77 Francis, Daniel, 29–30, 183 Fresno, CA, Zencense buyer Tony Nottoli in, 58, 59, 60–61 Fuller, Lon, 96 Fury, Shauncey, PensacoLebowski, 81–82, 229n31 Galecki, Ben: animal rescue work by, 128; background of youthful run-in with the law, 19; character letters written for, 127–28, 129; crossing paths with Burton at Narcotics Anonymous, 19; education and job history of, 23–24, 30–31; employed as piercer at Psychedelic Shack, 23, 24; Heretic Films (with Burton), 80–81, 81, 228n23; innocence as continued assertion by, 78–79, 86, 87; interest in technical challenges, 23, 31, 215n24; Kinematic Entertainment, 80; mental health background of, 19, 210n6; Pensacon, 81, 82, 88, 127–28, 228–29nn30– 31; personality of, 32–33; sentencing in the Second Trial, 210n6; wife (Ashley), 58, 80, 128, 129, 166, 180. See also Zencense Galecki, Leon (father of Ben), 129 Garcia, Jerry, 21–22 Gardner, John, 88 Garland, Merrick: as Attorney General under Biden, 193–94; as Clinton appointee to DC Circuit, 102–3; Obama nomination to Supreme Court and hearing and vote blocked, 102–3, 233n7 Gas Pipe case: acquittal of analogue charges, 146, 158, 194; alleged nationwide Brady violations exposed in, 141, 142–44; analogue lists disclosed in, 144–45; Berrier’s credibility impugned in, 145–46, 154; Berrier’s dissent on UR-144 and, 145, 194; Continuing Criminal Enterprise charges unsuccessful in, 165; testimony on Berrier being told to be a “team player,” 37–38 Gas Pipe head-shop chain, Zencense as distributor to, 31, 142 Gaye, Marvin, copyright infringement case by estate of, 157–58, 240n15 Germany, 22

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Gertner, Judge Nancy, 193 GHB, 25 Ginsburg, Justice Ruth Bader: death of, 233n7; Kimbrough opinion, 107 GoFundMe fundraising video, 178–79 Gordon, Judge Andrew, 165, 170, 171, 175, 178, 180–81, 182; as Obama appointee, 165, 178. See also Third Trial (District of Nevada) Gorsuch, Justice Neil: as Tenth Circuit judge (United States v. Makkar), 101–2, 103, 148, 176, 184, 195, 232n4; as Trump appointee (Supreme Court), 103, 195, 233nn7,10 Gould, Judge Ronald, 187–90 Government Accountability Office, 195 Grateful Dead tours, 21–22 Green, Drew, 29 Greig, Akil, 26 Gresham, Doyle (law enforcement officer): as borrowing bongs from the Shack for antidrug presentations, 20, 112–13, 169; contacted by Burton after the 2012 raid, 49, 113, 168; testifying about Burton’s openness with law enforcement, 112–13, 168–69 Grinspoon, Lester, 14–15 guilty mind. See mens rea (guilty mind) Guzman, Joaquin “El Chapo,” 166 harm reduction, 198 Harrington, Sarah, 97, 98 Harvard University, 14, 22 Hawkins, Cynthia, and the Fedida case: exposure of Berrier’s dissent on analogue status of UR-144, 73–77, 122; joint hearing, 63 Hayward, Ashton, 82 Headhunter spice brand, 31 Heaphy, Timothy J., 94 Henderson, Gary, 9–10 herbal ecstasy, and ban, 22, 211n26 herbal incense/potpourri as terms for spice, 27, 111, 142 Herbert, Frank, Dune, suggested as inspiring name for Spice, 32, 116–18, 216n33 Heretic Films (Burton Ritchie and Ben Galecki), 80–81, 81, 228n23 heroin: “frozen addicts” incident among users, 9, 10, 45; in the opioid crisis, 245n3 High Times, 20 The Highwaymen (folk group), 12, 208n3

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Hirsch, Caroline, 81 Hodge, Richard “Bird,” 26 Holder, Eric, 221n13 Hoosier, James, 82 House of Representatives, 13–16, 26 Hudson, Kevin, 89, 90, 110, 113, 122, 129– 30, 161. See also First Trial (Eastern District of Virginia) Huffman, John William, 22–23, 212n35. See also JWH-018 Hughes, William, 15–16 human consumption, necessity to prove intention for: circuit split and, 95; as First Trial issue, 108; Fourth Circuit rationale that prosecutors only have to prove, as struck down, 95, 97, 99; and Judge Jackson denial of “entrapment by estoppel” defense in First Trial, 108; “not for human consumption” label meant to evade, 27; as Way trial issue, 155. See also “not for human consumption” label Hummel, Timothy: joint hearing on motion to dismiss Fedida case, 63–68; motion for return of property to, 63, 77; printed information on chemicals found with, 62–63; seizure of money and property from, 62–63, 76; sentencing on relatively minor charges, 76; XLR-11 used by, 62 Humphreys, Michael, and the Nevada civilforfeiture case, 83–84 Hurt, Eric, 113, 115–17, 119, 120, 122, 124, 133, 148–49, 161 immunity granted and not granted, as balance-of-forces issue, 165, 186–87 Jackson, Judge Raymond Alvin: Nader Abdallah sentenced by, 120; Sharif Abdallah sentenced by, 120; background of, 105–7; as Clinton appointee, 105; declining to be interviewed for this book, 234n1; Kimbrough crack/powder cocaine mandatory sentencing disparity criticized by, 106–7; McGee removed as counsel by, 86–88, 112; request for removal from Burton and Ben’s case denied by the Fourth Circuit, 162, 165, 176–77; sentencing of Ben, 135–36; sentencing of Burton, 131–33. See also First Trial (Eastern District of Virginia); Second Trial (retrial in Eastern District of Virginia) Johnson, Carrie, 221n13

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Johnson v. United States, 96, 100, 101–2, 103 Journal of Forensic Sciences, 8 jury: conviction by, role in finding violation of Analogue Act, 55, 94, 95, 97, 100, 140, 173, 185, 194, 195; disjunctive (either structure or effect prongs) reading of the Act designed by DOJ to enhance conviction by, 13, 17–18, 192 jury trial: Allen charge to avoid hung jury, 125; intention of Burton and Ben to obtain, 87; “trial penalty,” 86–87 Justice Department (DOJ): Narcotic and Dangerous Drugs Section, 166, 167, 168– 69; as opposing Supreme Court review of convictions, 95; Organized Crime Drug Enforcement Task Force, 79; permission denied for Berrier testimony at Second Trial, 121–22; scandal involving listening to attorney-client calls, 238n6; Solicitor General position, 97. See also cooperating witnesses; criminal investigation of Burton and Ben; DEA (Drug Enforcement Administration); Justice Department/ DEA press releases and conferences Justice Department/DEA press releases and conferences: on Abdallah sentencing, 120; following Operation Log Jam, 49; giving notice to get rid of substances before they are banned, 79; on harmfulness of spice, 42; on latest spice charges, 191; on Makkar case, 101, 232n4; misleadingly calling spice “synthetic marijuana,” 213n46; misstating the law, 94 JWH-018: AM-2201 as analogue of, 64; Huffman as synthesizer of, 22–23; as the most popular spice ingredient (2007–10), 42; scheduled permanently (2012), 42; scheduled using temporary emergency powers (2011), 28, 42; UR-144 deemed to be an analogue by DEA, despite disagreement of Berrier, 38–39; XLR-11 deemed to be an analogue by DEA, with no formal review by Berrier, 39. See also UR-144; XLR-11 JWH-250, 142 K2 spice brand (that became generic term), 32 Kahn, Judge Charles Jr., 86 Kansas Broombaugh case: Berrier testimony in, 136–37, 138–40, 142, 149; and Brady allegations, 142

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Keller, James, 166, 168, 170, 172–74, 180–81 Kennedy, Justice Anthony, 97 Kimbrough, Derrick, 106–7 Kimbrough v. United States, 106–7 Kinematic Entertainment (Ben Galecki), 80 King v. Burwell (Obamacare), 99 Kvetko, Lance, 37, 39 LaDue, Christoph Karl Jr., death after smoking spice, 56–57, 168, 181–82 LaDue, Karl and Shelley: civil suit for death of son Karl, 57, 180, 223n36; statements at Third Trial sentencing, 180, 181–82 Las Vegas Zencense warehouse: Burton’s communications with Cosey and presentation of samples in aftermath of, 2, 49–52, 59, 169, 186; DEA surveillance of, 44; detention and release of Ryan Eaton, 47–48, 53–54; establishment of, 41–42, 43; process of making spice, 43; process of shipping spice to Pensacola, 43–44; reported to police by neighboring business, 44; search and seizures by DEA (25 July 2012), 47–48; search warrant obtained, 44, 47 legalization of drugs, advocates for: Lester Grinspoon, 14; Judge Robert Sweet, 24–25 Leonhart, Michele, 49, 221n13 Levine, Samm, 80, 178–79 Libby, Adam (chemist): arrest and conviction of, 59–60; dispute over testimony for Burton and Ben, 165, 186 LinkedIn, 58–59 Louisiana: “Mr. Miyagi” spice case, 29, 183; NPR segment with Louisiana doctor about bath salts, 45, 49 Low Down (2014 film), 80, 228n23 LSD, Burton’s 1990 arrest and pretrial diversion for charges on, 4–5, 7, 19–20, 113, 204n1, 206n40 Lungren, Daniel, 14–15 Lynch, David, Dune film, 32, 117 McConnell, Mitch: blocking Merrick Garland hearing and vote, 103, 233n7; rapid confirmation of Amy Coney Barrett, 233n7 McDaniel, Lois, 92 McFadden, Stephen, 92 McFadden v. United States: overview, 92; amicus curiae briefs filed for, 95–96; and circuit split, 95; conviction upheld by the

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Fourth Circuit, 92–94; due-process issues, 93, 95, 102, 188; Fourth Circuit rationale that prosecutors only have to prove intent for human consumption struck down in, 95, 97, 99; Gorsuch on, 102; and jury as determining analogue status, 97, 100, 185; mens rea (guilty mind), 99, 185, 187, 188; opinion announcement (Thomas), 98–100; oral arguments, 97–98; petition to the Supreme Court, 94–95; secrecy of the analogue list, 93–94, 96–97 McGee, David (lawyer): background and job history of, 78; in GoFundMe fundraising video, 178–79; as lawyer in civil-forfeiture case, 78–79, 83; as lawyer in criminal case, 85, 86; removed as lawyer in Virginia, 86–88, 112; sentencing letter for Second Trial, 129; testimony to reliance on counsel blocked, and vacated on appeal, 112, 176; on unfair treatment of Burton and Ben, 178–79. See also Nevada civil-forfeiture case Makkar, Iqbal, 101. See also United States v. Makkar Malone, Tommy Jr., 29, 183 mandatory minimum sentences: class-wide fentanyl ban and expansion of, 193; Continuing Criminal Enterprise law and, 165–66, 175, 182, 185–86; crack/powder cocaine disparity in, 16–17, 63, 106– 7; Judge Andrew Gordon expressing serious concerns about, 182 A Man for All Seasons (Bolt), 188, 189–90 marijuana. See cannabis MDEA, 36, 37, 92, 217n17 MDMA (Ecstasy): AET possibly sold as, 5; chemical name of, 205n20; herbal ecstasy, and ban, 22, 211n26; scheduled using temporary emergency powers, 10; Shulgin as “Godfather of Ecstasy,” 7 MDPV (synthetic cathinone), 35–38, 42, 92, 93, 153, 217n14, 230–31n5; scheduled (2012), 42 Meacham, Chad, 144–45, 218–19n42, 239n23 Medford, OR, 57 Meese, Edwin, III, 11, 13–14, 193, 246n7 Mencken, H. L., 91, 230n26 mens rea (guilty mind): Analogue Act circuit split and, 95; Judge Daniel Collins’s A Man for All Seasons citation on, 188, 189–90; definition of, 77; Felman on the

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Analogue Act as attack on, 77, 185; Gorsuch on lack of, in Makkar, 102, 148, 176; the government’s position that reliance on expert advice is proof of, 148, 186; importance of Berrier’s dissent on UR-144 to show lack of, 74; McFadden on, 99, 185, 187, 188; Seventh Circuit requirement to prove knowledge of dealing analogues, 95. See also human consumption, necessity to prove intention for; reliance on expert advice to comply with the law, as defense methcathinone, 92 Michel, Robert, 16 Mickle, Jayson, 132 military service members and use of synthetic cannabinoids: motives for using, 24, 213–14n56; spice retailers on the offlimits list, 213–14n56, 234n18 Miller, Greg: and Nevada civil-forfeiture case, 83; removed from criminal case, 86–88 Misery Loves Comedy (2015 film), 80, 81 MPPP, 9, 10, 207n2 MPTP, 9, 207n2 Mr. Miyagi spice brand, 29, 183 Mueller, Robert, investigation of Trump, 192, 246n10 Muench, James, 66 naloxone, 198 Narcotics Anonymous, Burton as member of, 5, 19, 20, 113, 128, 131 National Association of Criminal Defense Lawyers: brief filed in Fedida, 71–72; brief filed in McFadden, 95 National Institute on Drug Abuse, 22, 67, 248n2 Neutronium spice brand, 32, 54 Nevada civil-forfeiture case against Burton and Ben: Berrier deposition, 84; and Berrier’s dissent on UR-144, Fedida disclosure of, 84; Boos deposition denied, 84; Cosey deposition, 79; delays by DOJ due to their criminal investigations, 83–84; innocence as continued assertion by Burton and Ben, 78–79; McGee as lawyer for, 78–79, 83; XLR-11 analogue status as issue in, 84. See also Las Vegas Zencense warehouse; Third Trial (District of Nevada) Nevada Southern Detention Center (Pahrump): Burton and Ben confined during Third Trial in, 164, 165, 166, 178; COVID-19 in, 178

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New York, Southern District of: Roberts case, 24–26, 37; spice indictment (2021), 191 New York Times, 12, 16, 205n18, 209n34, 233nn7,10, 239n2, 241n3 Nguyen, Judge Jacqueline, 240n15 Ninth Circuit Court of Appeals: overview, 184, 244n3; copyright and substantialsimilarity test, 157–58, 240n15; Judge Gordon referencing Analogue Act and other issues sure to be appealed, 182; when lawyers are told who the panel of judges is, 187 Ninth Circuit appeal: awaiting the outcome of, 190, 196; confinement of Burton and Ben during, 184–85, 196; conjunctive vs. disjunctive reading of Analogue Act questioned by judges, 188–89; Continuing Criminal Enterprises charges as issue, 185–86, 187; defense team for, 183; due-process issues, 185, 186–87; fraud conviction for not-for-human-consumption label, as issue, 189; GoFundMe fundraising video, 178–79; mens rea (guilty mind) as issue, 185, 186, 187; oral arguments, 188–90; panel of judges, 184, 187–88; reliance on expert advice to comply with the law, issue of denial of, 186–87; vagueness of the Analogue Act as issue, 185, 187, 189 Nixon, Richard: as drug-war declarant, 10, 165–66; judicial appointments, 87 NMS Labs, 63 Norton, Jim, 81 “not for human consumption” label: to avoid prosecution, 27; to avoid regulation, 27; Dandar’s advice to use, 155; as dodge, 30; Ninth Circuit appeal of fraud conviction for using, 189; NPR’s All Things Considered and discussion of, 45; Third Trial fraud convictions for deceiving retailers with, 175. See also human consumption, necessity to prove intention for Nottoli, Victor Anthony: arrest for possession of scheduled drug, 60–61, 110–11; as buyer of Zencense, 58–61, 155, 158; closure of Zencense successor company ZenBio, 59–60; as cooperator with the government, 60–61, 110–11, 183; declining to be interviewed for this book, 223n39; as distributor of Detoxify, 58; as head-shop owner in recovery, 58; sentencing of, 183 NPR: All Things Considered segment on designer drugs, 44–46, 157; on scandal

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involving DEA Administrator Michele Leonhart, 221n13; on Jeff Sessions’s judicial nomination, 246n7 Nuttall, Roger, 158 Obama, Barack: and hearing and vote on Merrick Garland nomination to the Supreme Court blocked by McConnell, 102–3, 233n7; judicial appointments, 63, 161, 165, 178; signing the Synthetic Drug Abuse Prevention Act (2012), 42; Snook’s use of image in Third Trial, 174; stating marijuana isn’t a dangerous substance, 221n13 Obamacare, 99 Obama White House, Office of National Drug Control Policy, on synthetic cannabinoids, 27, 42 ODE. See Diversion Control, DEA Office of O’Neill, Tip, 15 openness of Burton and Ben with law enforcement: overview of Burton’s philosophy and practice of, 20; cited by Judge Kahn in initial bail hearing (Pensacola), 86; and Cosey (Special Agent) discussion following the DEA raid in Las Vegas (2012), 2, 49–52, 59, 169, 186; deposition of Cosey confirming he received samples and did not tell Burton to shut down when Burton asked, 79; as First Trial (Eastern District of Virginia) issue, 88–89, 90, 108–9; Makkar case sharing features of, 101, 102, 148; the Psychedelic Shack and, 20, 112–13; samples given to Cosey, 2, 53, 54; as Third Trial (District of Nevada) issue, 166, 167–70. See also Cosey, Claude (DEA Special Agent); Gresham, Doyle (law enforcement officer); reliance on expert advice to comply with the law, as defense Operation Log Jam (2012): overview, 1, 43, 46, 48–49; as effectively increasing Zencense’s market share, 55, 222n8; press conference following, 49; search and seizures of Zencense’s Las Vegas warehouse, 47–48; totals of cash and assets seized, 49; totals of drugs seized, 48–49. See also criminal investigation of Burton and Ben; Fedida case; Hummel, Timothy; Nevada civilforfeiture case against Burton and Ben Operation Safe Summer, 141 opioid crisis, 191, 194, 245n3, 247n19. See also fentanyl; heroin; synthetic opioids

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Organized Crime Drug Enforcement Task Force, 79 Orgazmo spice brand, 32 Panama City, FL, 22 paraphernalia, as legal gray area, 21 Park City, UT, 48, 80 Parkinson’s research, 9 Pensacola, FL: animal rescue work by Ben and Ashley, 128; Burton’s arrest on LSD charges (1990), and pretrial diversion, 4–5, 7, 19–20, 113, 204n1, 206n40; US Attorney’s Office hesitant to use the Analogue Act to prosecute Zencense, 49–50, 54, 85, 221–22n18. See also Big Jerk Soda Co.; Pensacon; Psychedelic Shack; Zencense Pensacola News Journal, 80–81, 241n3 PensacoLebowski, 81–82, 229n31 Pensacon, 81, 82, 88, 127–28, 228–29nn30–31 Perez, Shawn (Ryan Eaton’s lawyer), 168, 174 The Place (Pensacola nightclub), 4 plea bargaining, 60–61, 76, 86–87, 104, 186–87, 240n22. See also cooperating witnesses poison control centers, synthetic drugs and calls to, 28, 42 Pollak, Kevin, 80, 127; character letter written for Burton, 127; Misery Loves Comedy (2015 film), 80, 81 potpourri as term for spice, 27, 111, 142 potpourri company testimony, 111 private lab testing by spice industry: overview of dual-report system, 28; “does contain” reports held by wholesalers, 28–29, 31; law enforcement’s deception narrative and, 29; wholesalers sending retailers “does not contain” reports, 28, 31, 168; Zencense practices, 31, 43, 50, 54, 114 Psychedelic Shack (Burton’s head-shop chain in Pensacola): overview of basic business rules of, 20, 21; Ben as employee of, 23, 24; Burton’s relationship with law enforcement, 20, 112–13; Burton’s TV commercials for, 41; Cosey surveillance of, 53–54; customers kicked out for talking about illegal drugs, 32; establishment of, 20, 21, 113; expansion into second and third locations, 24, 54; Grateful Dead tours, selling while following, 21–22; Jerry Garcia memorial bash, 22; on military’s off-limits list, 213–14n56; piercing

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and tattoo studio in, 23; pricing of spice in, 54; sale of products that help people pass drug tests, 20, 58; under new ownership, 196–97. See also Zencense Quinlan, Scott, 152–53, 155 Radovich, Cole, 167 Randa, Judge Rudolph: as George H. W. Bush appointee, 69; and Smoke Shop motion for return of spice, 69, 71 Reagan, Nancy, “Just say no,” 16 Reagan, Ronald, 10, 16; judicial appointments, 6, 12, 87, 97, 244n3; Jeff Sessions’s judicial nomination blocked, 246n7 Red 2 (2013 film), 80 Red Barn (Newport News, VA), 104, 234n18 Rees, David: on frustration of Diversion Control with Berrier, 38; on knowledge of Diversion Control about Berrier’s UR-144 dissent, 38–39, 143–44 Rehnquist, Chief Justice William, 87 Reinhold, Lindsay (chemist), 63–65 reliance on expert advice to comply with the law, as defense: cast by the government as proof of guilty mind, 148, 186; Cosey (DEA Agent) barred from testifying for, 108–9, 111–12; Cosey testimony in Third Trial (District of Nevada), 165, 169–70, 186; Tim Dandar not testifying, 165, 186; Dandar’s letter as lawyer, 55, 155; definition of “entrapment by estoppel” defense (reliance on government official’s advice), 108–9; First Trial denial of by Judge Jackson, 108–9, 111–12, 114–15; Fourth Circuit appeal vacating denial of, 176; Adam Libby not testifying, 165, 186; and McFadden motion to dismiss, 93; McGee (lawyer) barred from testifying, and vacated on appeal, 112, 176; Ninth Circuit appeal of denial of, 186–87; Second Trial denial of by Judge Jackson, 165, 186; Third Trial prevention of testimony speaking to, 165, 186. See also mens rea (guilty mind) “representation of substantially similar effect,” conviction reversed as absurd by Third Circuit, 17–18, 26 Republicans: blocking Obama nominee Merrick Garland from having a hearing or vote to sit on Supreme Court, 102–3, 233n7; support for class-wide fentanyl ban, 192–93; support for the Analogue Act, 11, 14–15, 16

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Retail Compliance Association (trade association), 29–30 Richman, Patricia, 192 Ritchie, Charles Burton: acting in films, 80; arrest on LSD charges (1990), and pretrial diversion, 4–5, 7, 19–20, 113, 204n1, 206n40; as autistic, 20, 33; background of, 19; character letters written for, 126, 128; employee no-drug-use policy and reporting to police, 20, 21, 112; entrepreneurial awakening at University of West Florida, 19–20; Heretic Films (with Ben), 80–81, 81, 228n23; innocence as continued assertion by, 78–79, 86, 87, 124, 132, 156, 179; libertarian stance toward the activities of his customers, 21, 124, 155– 56, 169–70; as member of Narcotics Anonymous, 5, 19, 20, 113, 128, 131; mother (Linda Crews), 4, 128, 166, 180; move to Park City (UT), 80; mutual LinkedIn reviews with Jason Way, 58–59; offer to shut down Zencense if Cosey thought they were breaking the law, 54, 79; open relationship with law enforcement as philosophy and practice of, 20; personality of, 32–33, 48, 167; as poker player/gambler, 20, 41, 80, 115–16; rule against fighting city hall, 20, 49, 113; rule against selling anything illegal, 20, 113; rule against selling anything legal in an illegal manner, 20, 32, 113–15, 216n40; as science fiction/Dune fan, 116–18; as Superman comics fan, 32; wife (Stephanie) and children, 80, 166. See also openness of Burton and Ben with law enforcement; Psychedelic Shack; Zencense Roberts case, 25–26, 37 Roberts, Chief Justice John: and King v. Burwell, 99; and McFadden, 99, 100 Roberts, Todd Kelly, 25–26 Rogers, Don, 15–16, 209n29 Rolling Stone, 20 Rosenstein, Rod, 246n10 Ross, Brian, 29–30 Ruiz, Jason, 168–69 Russell, Kevin, and McFadden v. United States, 94–95, 97, 100 Ryan. See Eaton, Ryan Sapienza, Frank: on AET as analogue, 6; Forbes case testimony for the government, 6, 35; as helping to write the Analogue Act, 6

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Scalia, Justice Antonin: and Bush v. Gore, 103; Judge Daniel Collins as clerk for, 187, 188; death of, 102; Gorsuch as idolizing, 103; Johnson v. United States opinion, 100, 103; and King v. Burwell, 99; and McFadden v. United States, 97–98, 188; as Reagan appointee, 97, 98, 103 Schonfeld, Richard (Ben’s Third Trial lawyer), 169, 174 Schultz, Lindsay, 168 Scott, Bobby, 194 Second Circuit Court of Appeals, defense analogue win reversed (Roberts case), 25–26 Second Trial (retrial in Eastern District of Virginia): Allen charge to avoid hung jury given by Judge Jackson, 125; analogue status of XLR-11 and UR-144 as issue in, 124–25; Berrier testimony denied to defense, 121–23, 136, 160, 161, 172; Burton’s testimony, 124; Cosey testimony excluded, 176; decision to plead guilty and combine all charges for sentencing in Nevada, 176–77, 178, 179, 182, 243n3; Fourth Circuit appeal (first) returning issue of Berrier testimony to Judge Jackson, 147–50, 160, 161; Fourth Circuit appeal (second) returning issues to Judge Jackson, 176–77; hung jury of First Trial leading to, 120; innocence as continued assertion by Burton, 124, 132; legality of XLR-11 and UR-144 as only contested element in, 124; reliance on expert advice to comply with the law, defense denied by Judge Jackson, 123, 124, 176; sentencing letters, 127– 29; sentencing of Ben, 133–36, 210n6; sentencing of Burton, 129–33; verdict of guilty in, 125–26. See also Fourth Circuit appeal (first); Fourth Circuit appeal (second); Third Trial (District of Nevada) secrecy of analogue decisions taken by DEA: overview, 43; analogue-status response tested by the author, 218–19n42; and arbitrary enforcement, 72; claimed to be inherently incomplete, 93–94; claimed to prevent giving the “bad guys” a “road map,” 40, 144–45, 218–19n42, 239n23; Gas Pipe case and release of analogue lists, 144–45; McFadden v. United States and, 93–94, 96–97; Ninth Circuit appeal and issue of, 185. See also deliberativeprocess privilege, invoked in attempt to keep Berrier dissent secret

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Segal, Gregory, 81 Sehgal, Gaurav, 101 seizure of cash and assets by DEA: Hummel, 62–63, 76; money problems of Burton and Ben due to, 87, 178, 187; Operation Log Jam totals, 48–49; seizure of property and keeping it until it is declared illegal, 71; Smoke Shop motion for return of spice, 68–71, 75, 77, 89, 119, 143; Zencense’s Las Vegas warehouse, 47–48. See also fair warning of illegal conduct not provided by Analogue Act; forfeiture of assets Senate Judiciary Committee, 11, 12–13 Sessions, Jeff, 192, 246nn7,10 Seventh Circuit Court of Appeals, and circuit split on Analogue Act, 95 the Shack. See Psychedelic Shack Shedd, Judge Dennis, 147–49, 160–61, 239nn2–3, 241n3 Shulgin, Alexander “Sasha,” 7–8, 195; lecture (1987), 66; letter to the Journal of Forensic Sciences (1987), 8, 195, 206n44; PiHKAL (Phenethylamines I Have Known and Loved) (1991), 7; TiHKAL (Tryptamines I Have Known and Loved) (1997), 7 Shulgin, Ann, 7 Silver, Judge Roslyn, 187, 188 Sky High Smoke N Accessories (Medford, OR), 57, 168 Smoke Shop case (Wisconsin), motion for return of spice, 68–71, 75, 77, 89, 119, 143 Snook, Lloyd (lawyer): background of, 91, 174; on confusion remaining after McFadden, 100; on due-process violation of the Analogue Act, 93; opinion of the Analogue Act as “stupid,” 91, 94; on reliance on the advice of a federal law enforcement officer, 93; on secrecy of the analogue list, 93. See also McFadden v. United States; Snook, Lloyd, as Burton’s criminal case lawyer Snook, Lloyd, as Burton’s criminal case lawyer: First Trial (Virginia), 91, 108, 110– 11, 112–15, 117–19; Second Trial (Virginia), 124–25, 130, 132; Fourth Circuit appeal (first), 148; Fourth Circuit appeal (second), 161; Third Trial (Nevada), 165, 167–68, 170–72, 174; Ninth Circuit appeal, 183, 184, 186–87. See also specific trials and appeals by name

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Sonic Zero spice brand, 32, 44, 54 SouthBARK Animal Rescue (Pensacola, FL), 128 Special Testing and Research Laboratory. See Forensic Sciences (Special Testing and Research Laboratory), review of Diversion Control monographs by Berrier spice: Dune (Frank Herbert) suggested as inspiring name of, 32, 116–18, 216n33; JWH-018 used in, 22, 42; psychosisinducing potential (“spiceophrenia”), 23, 56–57, 223n35. See also spice industry; synthetic cannabinoids Spice brand (that became generic term), 31–32 spice industry: brand recognition, importance of, 31–32; domestic sourcing of chemicals, 59–60; flavoring additions (called “fragrance”), 28, 32; herbal incense/potpourri as terms for spice, 27, 111, 142; shifting to new synthetic cannabinoids as older ones were banned, 28; trade associations, 29–30, 183, 215nn12,15; trade shows, 29. See also Analogue Act (1986); China, import of chemicals from; “not for human consumption” label; private lab testing by spice industry “spiceophrenia” (psychosis-inducing potential), 23, 56–57, 223n35 state of mind. See mens rea (guilty mind); reliance on expert advice to comply with the law, as defense Stouch, Terry (chemist), 65 structural similarity as requirement, 17–18, 26; conjunctive (both structure and effect) vs. disjunctive (either structure or effect) reading of the Act, 13, 17–18, 26, 188–89, 192. See also substantially similar (Analogue Act definition) Stuffed Pipe head-shop chain (Fresno, CA), 58 substantially similar (Analogue Act definition): conjunctive (both structure and effect) vs. disjunctive (either structure or effect) reading of, 13, 17–18, 26, 188– 89, 192; copyright law and use of term, 11, 157–58, 208n15, 240n15; Diversion Control methodology not subjected to peer review or publication, 70; DOJ letter outlining concept (1985), 11; “effect prong,” 14, 17–18, 66, 72, 192; “representation of effect prong,” conviction

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substantially similar (continued) reversed as absurd by Third Circuit, 17–18, 26; “structure prong” as requirement, 17–18, 26. See also Analogue Act (1986); substantial similarity, lack of scientific consensus on meaning of substantial similarity, lack of scientific consensus on meaning of: Berrier’s view on lack of definition, 35; Terrence Boos (DEA chemist) on, 67–68, 69–70; Thomas DiBerardino (DEA chemist) on, 96; Paul Doering on, 65–66; DOJ claim of consensus, 14, 17, 35; Gregory Dudley on, 119, 170; Fedida case and, 67–68, 70; Forbes case dismissal by Judge Babcock and, 6–7, 25, 35, 93; McFadden and, 96; Ninth Circuit appeal and, 185; Lindsay Reinhold on, 64; Sasha Shulgin on lack of objective standard, 8, 66; Terry Stouch on, 65; Judge Robert Sweet on, 25; Michael Van Linn on, 118. See also vagueness of the Analogue Act Sullivan, Laura, 45–46 Supreme Court: Brady v. Maryland (disclosure of exculpatory evidence), 73; Bush v. Gore, 103; Comprehensive Crime Control Act challenge to scheduling system rejected in Touby (1991), 207n9; COVID19 era changes in, 232n31; Johnson v. United States (vagueness of Armed Career Criminal Act), 96, 100, 101–2, 103; Kimbrough v. United States, 106–7; King v. Burwell (Obamacare), 99; rarity of cases making it to, 94, 95, 231n19; textualism, 97–98, 103; United States v. Booker, 107; Wheat v. United States (blocking the same lawyer from representing two defendants in a drug case), 87. See also McFadden v. United States Sweet, Judge Robert: as Carter appointee, 24; counterfeiters not covered by the Analogue Act, 26; as endorsing drug legalization, 24–25; Roberts case, 25–26, 37 synthetic cannabinoids: as binding to the body’s cannabinoid receptors, 22; first scheduled using temporary emergency powers, 28; John William Huffman as synthesizer of, 22–23, 212n35; motives for smoking, drug tests not detecting, 23, 24, 212–14nn43,56; motives for smoking, prohibition of cannabis, 23, 167, 213–14n56; motives for smoking,

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stronger high than cannabis, 23. See also cannabis (marijuana); JWH-018; spice; UR-144; XLR-11 synthetic cathinones: as “bath salts” chemical, 36; MDEA, 36, 37, 92, 217n17. See also bath salts; MDPV Synthetic Drug Abuse Prevention Act (2012), 42 synthetic opioids: MPPP, 9, 10, 207n2. See also fentanyl; opioid crisis Talladega (AL), Federal Correctional Institution, 184–85, 196 Templeman, Rachel (Zencense/ZenBio employee): on ending calls if customers mentioned smoking the product, 168, 216n40; testifying against Burton and Ben, 79–80, 111, 168, 186 temporary, emergency scheduling. See Comprehensive Crime Control Act (1984) Tenth Circuit Court of Appeals, United States v. Makkar (Judge Neil Gorsuch), 101–2, 103, 148, 176, 184, 232n4 Texas. See Gas Pipe case Third Circuit Court of Appeals, “representation of similar effect” conviction reversed as absurd, 17–18, 26 Third Trial (District of Nevada): analogue status of XLR-11 as issue, 170–72, 174; Berrier testimony allowed, 161, 165, 170–72, 174; Berrier testimony tainted, 162–63, 170–71, 172, 174, 175; closing arguments, 172–74; confinement of Burton and Ben during, 164, 165, 166, 178; cooperator testimony, 168; Cosey testimony allowed, 165, 169–70, 186; Tim Dandar not testifying, 165, 186; deceptiveness as issue, 167; decision to plead guilty and combine all charges for sentencing, 176–77, 178, 179, 182, 243n3; defendants not testifying, 172; drug dealing as focus of, 166–68, 173–74; Gregory Dudley testimony, 170; Ryan Eaton as codefendant in, 164–65, 166–67, 168, 169, 174, 175; family members of co-defendants in the courtroom, 166; family statements, 180, 181–82; Gresham testimony, 168–69; indictments, 85, 164–65; kingpin charges under Continuing Criminal Enterprise law, and mandatory minimum sentences, 165–66, 175, 182, 185–86; Adam Libby not testifying, 165, 186; opening statements, 166–68; openness

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with law enforcement as issue, 166, 167– 70; recidivism concern dismissed by Judge Gordon, 182; reliance on expert advice to comply with the law, prevention of testimony speaking to, 165, 186; sentencing, 179–82; verdict of guilty for Burton and Ben, 175; verdict of not guilty for Ryan Eaton, 175. See also Ninth Circuit appeal Thomas, Justice Clarence, 99, 232n31; as George H. W. Bush appointee, 99; and Kimbrough, 107; McFadden opinion, 98–99 three-strikes gun law, partially struck down (ACCA), 96, 100, 101–2 Thurmond, Strom, 11, 147, 239nn2–3 Time, 205n18 Toback, Michael, 25–26 Touby case (1991), 207n9 “Touhy request,” 121–22, 123 Touhy, Roger, 121, 236n2 trade shows, 29 Treadway, Tanya, 138, 140, 238n6 Trott, Stephen: Congressional testimony for Act by, 12–13, 14, 17, 18, 244n3; declining to be interviewed for this book, 208n1; emphasis on disjunctive (either structure or effect prongs) reading of the Act to enhance conviction by juries, 13, 17, 192; as former folk singer (The Highwaymen), 12, 208n3; as Reagan judicial appointee, 12, 244n3; as “true believer,” 12; vagueness concerns dismissed by, 13 Trump, Donald: appointment of Gorsuch to Supreme Court, 103, 195, 233nn7,10; election of, 103, 233n7; fentanyl-related substances banned under, 191–93; Fourth Circuit ruling on alleged violation of emoluments clauses, 161, 241n3; judicial appointments by, 184, 187; and Mueller investigation, 192, 246n10; Snook’s use of image in Third Trial, 174 tryptamines, 7 20/20 television interview of Daniel Francis, 29–30 United States v. Booker, 107 United States v. Makkar, 101–2, 103, 148, 176, 184, 232n4 University of Florida (Gainesville), 23–24 University of Southern California, 34 University of West Florida (UWF), 20, 24, 30 UR-144: chemical name of, 218n35; deemed to be an analogue of JWH-018 by DEA,

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39–40, 139; disagreement of outside chemists with DEA on analogue status of, 64, 65, 69, 71, 119–20, 124–25, 161, 170; notice prior to scheduling in May 2013 viewed by Burton and Ben as evidence of their innocence, 79; scheduled using temporary emergency powers, 71, 79; secrecy of analogue status of, 40, 43, 68, 72; Smoke Shop case and analogue status of, 71, 89; used in spice because it was not scheduled, 42–43, 62. See also UR-144, Berrier’s dissent on analogue status of UR-144, Berrier’s dissent on analogue status of: account of events (2012), 38–39, 46, 62, 75, 143–44, 145; Terrence Boos testifying to analogue status without reference to, 67–68, 69, 70–71, 74, 75, 77, 142–43; DEA awareness of dissent, 37–38, 118– 19, 143–44, 145; DEA secrecy about, 39, 68, 139–40, 142–43; DOJ claim of deliberative-process privilege to deny access to, 76, 122, 123, 138–39, 148–49; downplaying of Berrier’s role in analogue decisions by the government, 89, 119, 122–23, 152–54; Fedida case and disclosure of, 73–76, 77; Fedida case public exposure of, cited in other cases, 84, 122, 138–39, 143; First Trial (Eastern District of Virginia) issue of, 89, 90, 118–19; as the last formal review Berrier did for the DEA, 38, 39, 46, 139, 145; and Nevada civil-forfeiture case against Burton and Ben, 84; as never communicated in writing back to Diversion Control by headquarters, 39, 76, 145; Second Trial (retrial in Eastern District of Virginia) issue of, 121–23, 136, 160, 161, 172; XLR-11 lack of analogue status as following on from, 39, 62, 84, 123, 139, 171–72. See also Berrier testimony; Forensic Sciences (Special Testing and Research Laboratory), review of Diversion Control monographs by Berrier U.S. Courts of Appeals: “circuit split,” 95, 186, 187, 189; structure of, 94; when lawyers are told who the panel of judges is, 187. See also Fourth Circuit Court of Appeals; Ninth Circuit Court of Appeals; Second Circuit Court of Appeals; Seventh Circuit Court of Appeals; Tenth Circuit Court of Appeals; Third Circuit Court of Appeals US Virgin Islands, 26

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vagueness of the Analogue Act: dismissed by DOJ in testimony for passage of the Act, 13; Fedida case and issue of, 63, 64, 65–66, 70, 72, 96; Judge Andrew Gordon’s serious concerns about, 182; National Association of Criminal Defense Lawyers brief amicus brief on, 71–72; Ninth Circuit appeal and issue of, 185, 187, 189; Way appeal rejecting, 189; Way sentencing discussion of, 158–59. See also arbitrary enforcement permitted by the Analogue Act; due-process issues with the Analogue Act; fair warning of illegal conduct not provided by Analogue Act; substantial similarity, lack of scientific consensus on meaning of vagueness, the Armed Career Criminal Act (ACCA), partially struck down for, 96, 100, 101–2 Vanilla Sky (bath-salts brand), 45, 49 Van Linn, Michael, 118–19 Virginia: McFadden case (Western District), 92–94. See also First Trial (Eastern District); Fourth Circuit; Second Trial (retrial in Eastern District) VOW Foundation, 56, 198 Wall Street Journal, 94 War on Drugs: Analogue Act surfaces in, 11–18; Anti-Drug Abuse Act of 1986 as most punitive law passed during, 16; as “bankrupt,” 24; “Just say no” (Nancy Reagan), 16; latest front in, 191–95; Richard Nixon declarant of, 10, 165–66; Operation Log Jam as joining historic DEA raids in, 48–49; Sasha Shulgin as target of, 7; synthetic escalation of in Obama era, 42; synthetic escalation of in Reagan era, 9–11; traditional war as prompting synthetic war, 23. See also legalization of drugs, advocates for Washington Post, 12, 22, 192–93 Way, Jason: Burton stating well wishes during testimony, 156; charges for his role in the business, 61; as consultant for sale of Zencense to Tony Nottoli, 58–59, 155, 158; mutual LinkedIn reviews with Burton, 58–59; rejection of a plea deal, 159, 240n22. See also Way trial Way trial: analogue status of XLR-11 as issue, 151, 152, 155, 157–58; Berrier’s credibility tainted, 151, 154–55, 157,

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158, 172; Berrier’s role in analogue decisions downplayed by the government, 152–54; Berrier’s testimony, attempt to block, 152; Burton’s testimony, 155–56, 157; copyright law substantial-similarity test mentioned by prosecutor to jury, 157–58, 240n15; drug dealing as focus of, 151, 157, 158; human consumption as issue, 155; sentencing, 158–59; verdict of guilty, 158 Wheat v. United States, 87 White, Elizabeth, 188, 189 Wisconsin, Smoke Shop case, 68–71, 75, 77, 89, 119, 143 Wong, Liqun: and MDPV monograph, 36; and UR-144 monograph, Forensic Sciences’ disagreement about, 38–39, 143–44 Woolson, Teresa: civil suit for death of son Victor, 56, 57, 180, 223n36; and harm reduction, 198; nonprofit to raise drug awareness (VOW Foundation), 56, 198; statement at Third Trial sentencing, 180, 181 Woolson, Victor Orlando: death of, after smoking spice, 55–56; trust in safety of spice, 56, 181 World Series of Poker, 20, 116 Wright, Jim, 16 XLR-11: attorney letter from Dandar advising it’s not an analogue, 55, 155; Berrier not finding analogue status for, 39, 62, 84, 123, 139, 152, 171–72; Terrence Boos testifying to analogue status without reference to Berrier’s dissent, 69, 70–71, 142–43; deemed to be an analogue of JWH-018 by the DEA, 39–40; disagreement of outside chemists with DEA on analogue status of, 65, 71, 170, 185; Florida ban on, 59, 79–80; in the Gas Pipe’s custom blend, 31; and Nevada civil-forfeiture case against Burton and Ben, 84; scheduled using temporary emergency powers, 71, 79; scheduling and notice in May 2013, viewed by Burton and Ben as evidence of their innocence, 79; secrecy of analogue status of, 40, 43, 72; Smoke Shop case judge finding against analogue status of, 71, 89; used in spice because it was not scheduled, 42–43, 49, 62; Zencense importing from China, 43, 54

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Z’Dar, Robert, 127–28 ZenBio (successor business name after sale to Tony Nottoli): Alabama call center, 59, 79–80, 85; closure of business, 59–60; and Virginia, sales in, 85 Zencense: overview, 1–3; Ben’s role as partner in, 1, 30–31, 215n24; brands of, 31, 32, 44, 54, 60; China, importing XLR-11 from, 43, 54; civil suits against, for death of spice users, 56, 57, 180, 223n36; in the Coalition for Cognitive Liberty, 29, 183; Cosey appearance at code violation inspection, 55; Cosey visit with Burton to obtain samples, 2, 53, 54, 169; decision to sell the business, 55, 57–58; domestic sourcing of synthetic cannabinoids, 59–60; establishment of, 30; expansion of business following Operation Log Jam, 55, 222n8; making the spice, 31, 43; number of employees, 135, 219n1; private lab testing by AIBiotech, 31, 43, 50,

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54, 114; quarantining of chemicals until testing complete, 31, 43, 54, 114; rules for salespeople to end calls with customers who mentioned smoking the product, 32, 216n40; seizures of products around the country, 44. See also criminal investigation of Burton and Ben; Galecki, Ben; Las Vegas Zencense warehouse; openness of Burton and Ben with law enforcement; Ritchie, Charles Burton; Zencense, sale of the business Zencense, sale of the business: closure of successor business (ZenBio), 59–60; decision to sell, 55, 57–58; legitimate business style of transition to new ownership, 58–59; Tony Nottoli as buyer of, 58–61, 155, 158; Tony Nottoli testifying that Burton remained in charge after the sale, 111; Jason Way as consultant for deal with Nottoli, 58–59, 155, 158 Zencense Incenseworks LLC. See Zencense

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