“Operation Log Jam” will be a Test of Federal Analogue Act

The Drug Enforcement Administration (DEA) will attempt to prosecute those arrested during “Operation Log Jam” under the Federal Analogue Act.

According to  the DEA press release, while many of the designer drugs being marketed today were seized as part of Operation Log Jam, they are not specifically prohibited in the Controlled Substances Act (CSA).

However, the Controlled Substance Analogue Enforcement Act of 1986 (AEA) allows these drugs to be treated as controlled substances if they are proven to be chemically and/or pharmacologically similar to a Schedule I or Schedule II controlled substance.

This will be a major test of that law.  Up until now, very few cases were prosecuted under this law because the law is difficult to prove, especially in front of a jury, when the evidence involves extremely complex molecular chemistry.

The law has been tested on two separate occasions: in a District Court of Colorado decision– USA v. Damon S. Forbes et al. (1992) 806 F.Supp. 232, and USA v. Washam (2002) 312 F.3d 926, 930, an appellate decision for the eighth district court of appeals in Minneapolis.

In USA v. Damon S. Forbes et. al (1992), the court found, in part, as follows:

Defendants move to dismiss this action contending that the definition of [**2] a controlled substance analogue as applied here is unconstitutionally vague. 21 U.S.C. § 802(32)(A). Hearing on the motion was held on November 19, 1992. Because the definition of “analogue” as applied here provides neither fair warning nor effective safeguards against arbitrary enforcement, it is void for vagueness. Defendants’ motion is granted and this action is dismissed.

However, this decision has only been recognized in the district of Colorado where the decision was made, and was never challenged in a higher court.

In the second case, USA v Washam (2002) 312 F.3d 926, 930, The US Eight District Court of Appeals (ArkansasIowaMinnesotaMissouriNebraskaNorth DakotaSouth Dakota) ruled:

One of Congress’ purposes for passing the Analogue Statute was to prohibit innovative drugs that are not yet listed as controlled substances. McKinney,79 F.3d at 107. However, Congress did not limit the Analogue Statute’s application to newly designed drugs. The language of the statute shows that Congress intended to proscribe all drugs that are similar in chemical structure and effect to illegal drugs. We are confident that Congress intended to prohibit use of dangerous substances such as 1,4-Butanediol when it passed the Analogue Statute.
The Analogue Statute is not void for vagueness as applied to 1,4-Butanediol because Congress provided adequate notice of the proscribed conduct and prevented arbitrary enforcement through the terms of the statute. Therefore, we affirm the district court.

The second case, that of USA v Washam (2002), upheld the law.  However, the law has never been tested beyond that case.  ”Operation Log Jam” will provide a significant test of that law.

To The Maximus welcomes the test of this law, and believes that the DEA will be successful in the prosecution of these drug manufacturers, distributors, and dealers.

However, we also understand that the DEA has brought extra insurance into these prosecutions by involving a multi-agency task force made up of the US Immigration and Customs Enforcement, the Internal Revenue Service, the Treasury Department, the Federal Bureau of Investigation, the Food and Drug Administration, the U.S. Postal Inspection Service, the U. S. Customs and Border Protection, local sheriff’s departments, local police departments, and state troopers.

For example, Guy J. Cottrell of the US Postal Inspection Service said that their agency, alone, would take a multi-tiered approach to these crimes: prosecutiong under the protection against the use of the mail for illegal purposes and enforcement of laws against drug trafficking and money laundering.

Remember, that famous ganger, Al Capone, was never prosecuted for most of the crimes he allegedly committed, but he was found guilty of tax evasion.  This was how the federal government put him away.

Most of these “bad guys” involved in the synthetic drug trade are, likewise, not paying taxes on their ill-gotten gains.

Even if the federal prosecution under the analogue act doesn’t hold, we are confident something will stick, and if that gets the bad guys and their drugs off our streets, that is a good outcome.

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DEA will try to prosecute under law that regulates chemically similar drugs

By SAMANTHA ALLEN
sallen@fosters.com
Saturday, July 28, 2012

SOMERSWORTH — Following reports of Operation Log Jam commencing this week, with the seizure of millions of packets of designer drugs — including synthetic marijuana and bath salts — by the Drug Administration Enforcement (DEA), officials say they are attempting to prosecute those in possession at the federal level under the Controlled Substance Analogue Enforcement Act (AEA).

The AEA allows for substances to be treated as if they are on the Schedule 1 or Schedule 2 drug listing under the Controlled Substances Act (CSA), if those substances can be proven to be chemically and/or pharmacologically similar to those known and scheduled illicit drugs.

While these designer drugs are not specifically prohibited at the federal level, new legislation signed by President Barack Obama on Monday, July 16, will make possession of bath salts, synthetic marijuana and other designer drugs illegal on Oct. 1, 2012. The active ingredients found in the street drug known as bath salts — “MDPV” (methylenedioxypyrovalerone) and “mephedrone” — will be added to the Schedule 1 listing along with 29 others, known to be in synthetic hallucinogens and synthetic marijuana, at that time.

Schedule 1 serves to identify substances with “a high potential for abuse” and includes marijuana, amphetamines, heroin and morphine, among others. Doctors say the consumption of bath salts and synthetic marijuana create a stimulating experience similar to that of ecstasy when smoked or injected. Those drugs are said to mimic chemicals found in cocaine, LSD and methamphetamine, according to the DEA.

But lawmakers say the trouble with banning any kind of chemical compound is that eventually, manufacturers find a way to skirt the law. Assistant Attorney General Karin Eckel, of the New Hampshire Attorney General’s office, referred to designer drug manufacturers finding ways to stay “one step ahead,” by slightly tweaking drug compounds to fall outside of the inevitable federal ban.

U.S. Attorney John Kacavas of the New Hampshire Department of Justice previously told Foster’s he would welcome the legislation, as it would a provide a new tool to prosecute manufacturers and users.

“No sooner do government bodies figure out what the chemical composition of this particular drug is, (before) we see analogs, or cousins, of these drugs,” Kacavas said at that time. “We can prosecute them but it’s very difficult to prosecute at the federal level.”

Kacavas called the uptick in bath salts and synthetic marijuana use a “phenomenon.” In 2010, 57 poison centers reported receiving 303 calls concerning bath salts use. In 2011, from January to August, that number rose 4,720. At the national level, the number of calls nearly multiplied four times, with 3,200 calls reported in 2010 compared to 13,000 in 2011, according to the DEA.

Also, effective Jan. 1, 2013, New Hampshire’s “driving while intoxicated” (DWI) charge will include language to outlaw all chemical substances which are considered to impair a driver, including bath salts, prescription drugs and over-the-counter medications such as Benadryl.

New Hampshire State Police Sgt. Matthew Shapiro, who also serves as the highway safety coordinator for the State Policet, previously said users of these soon-to-be illicit synthetic drugs found “loopholes” in the system for years.

He told Foster’s users easily abused the products without repercussions before driving and his department often came upon impaired drivers they could not prosecute. Today, he said the new laws will make it easier for prosecutors to convict them.


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