Texas Prosecutor, September-October 2018

Not-so-legal “legal weed”

We detest the term “legal weed” and cringe every time one of our new prosecutors utters it when talking about synthetic cannabinoids (“Syn- Canns” for short). SynCanns are not legal, and they are not “weed”; they are currently classified as Penalty Group 2-A (PG2A) controlled substances in the State of Texas.1 However, anyone who is going to prosecute any PG2A cases—including us—had better get used to the term “legal weed” because no one on a jury panel will know what a synthetic cannabinoid is, but they’ll all have heard about “legal weed.”
    Synthetic cannabinoids first hit the market in the early 2000s.2 They are marketed using flashy packaging with intricate artwork, and they are sold under names such as K2, Spice, Black Mamba, Brain Freeze, Joker, Cheap Trip, Mary Jane, F’d Up, Chilly Willy, and many others. The origin of these compounds is fairly interesting if you enjoy chemistry and pretty mind-numbing if you don’t. Basically, chemists around the world were trying to make substances that mimicked the effects of marijuana in the human brain. The goal was to synthesize a substance yielding a marijuana “high” that was legal to sell because it was not the legally prohibited substance tetrahydrocannabinol (THC). The potential financial gain was almost unlimited—and presumably legal—because the chemical compositions of the new substances were not specifically prohibited by statute.
    Aside from the questionable legal status, the main problem with these compounds is the adverse side effects on a user’s health. In Lubbock County, users have reported nausea, vomiting, seizures, paranoia, confusion—some have even died. A participant in one of our drug courts was at home running a bath, he smoked SynCanns while waiting for the tub to fill, and he passed out and drowned in the bathwater. SynCanns are especially devastating to our city’s homeless population. There’s a certain park that patrol officers call “Zombieland”; this park is in a part of town that houses a significant portion of Lubbock’s homeless people. Officers relate that whenever a homeless person can pull together $10, he or she often goes to a nearby smoke shop, purchases synthetics, and immediately smokes them. The person then walks around in the park in a daze until the drug’s effects wear off. There have been so many dazed people stumbling around the park that officers dubbed it Zombieland.

Cracking down on cannabinoids
In 2014, Lubbock experienced an increase in the problems with synthetic cannabinoids. Prior to 2014, synthetics were sold only in the seedier head shops in town. Then legitimate smoke shops began displaying and selling synthetics, adding to the ruse that these products were both legal and safe for consumption.
    On June 6 of that year, a letter co-written by the city attorney and criminal district attorney went out to 53 Lubbock smoke shops. The letter outlined that selling synthetics was a violation of both Texas and federal law, and it detailed the effects exhibited by those under the influence of synthetics and warned that continued sales and/or any injuries or deaths because of synthetics sales would prompt prosecution to the fullest extent of both criminal and civil laws. Letters were hand-delivered to suspected stores, including three locations of Tobacco Road, which were owned by Anthony Carter. A few days later, the district attorney and city attorney held a joint press conference warning local businesses about these banned substances and the consequences of their continued possession or sale.  
    Four days after delivery of the letter and one day after the press conference, investigators with the Lubbock County Criminal District Attorney’s Office made a controlled purchase of suspected synthetics at a Tobacco Road location. The next day, a search warrant was executed at the same store, and 20 packets of F’d Up were seized, totaling approximately 85 grams of synthetics.
    In 2014, scientists had identified more than 450 synthetics,3 but only 162 of them were prohibited by Texas law. Surely the drugs we seized at Tobacco Road would be on the list of the 162, right? Wrong. To our dismay, the criminally motivated, drug-creating mad scientists had once again outpaced our laws. Our lab identified two different synthetics in the F’d Up packets, but they were not listed in the 162. And if they aren’t on the list … well, you get the gist.
    We could have dropped the case at this point and written it off as anachronistic karma, but we didn’t want to send a message to the Anthony Carters of the world that this snag in the law made it acceptable to sell synthetics in Lubbock, Texas. Although we could not prosecute Mr. Carter under the Health and Safety Code because his synthetic poison was not on “the list,” we were able to prosecute him under §32.42 of the Penal Code for Deceptive Trade Practices. It turns out that the ingredients in his packages of synthetics were not properly labeled, and that violation was a Class A misdemeanor. Carter pled guilty to that offense in March 2015—a pyrrhic victory at the time, but another step forward and a sound warning to criminals about the seriousness with which Lubbock’s law enforcement took this epidemic.
    Lucky for us—and prosecutors across the state—the legislature was about to arm law enforcement with a powerful tool against synthetics, and yes, against Anthony Carter too.

Changes to the law
As is often the case, criminals work much more quickly than the wheels of justice. Under the former statute, which took effect on September 1, 2011, Health & Safety Code §481.1031 created Penalty Group 2A. The statute specifically listed 162 illegal synthetics and prohibited “any quantity of a synthetic chemical compound that … mimics the pharmacological effect of naturally occurring cannabinoids. …”4
    At the local level, we encountered many difficulties. The field test kits law enforcement used were not yet reliable enough with SynCanns to support prosecution. Additionally, our regional DPS lab and the private lab our probation office uses could test for only 25 synthetics at that time. When one SynCann was outlawed, the chemists working for the criminals would change the molecule ever so slightly. The result was that the user would still experience the same high, but it wasn’t the result of an illegal compound listed in the statute—this new substance, in other words, was no longer illegal. We quickly learned that we could put our DPS chemist on the stand to testify that the compound in question was a synthetic chemical compound, but we needed a medical doctor or pharmaceutical research doctor to testify whether the compound mimicked the pharmacological effects of naturally occurring cannabinoids. No one was able to take the stand to testify that the substance in question acted like a cannabinoid. We had hit the proverbial brick wall.
    But the legislature made more changes. On September 1, 2015, an amended H&SC §481.1031 went into effect, giving prosecutors a powerful tool in the fight against synthetic cannabinoids. While the old version of the law listed 162 banned substances, the new version lists only 23. At first glance, it would appear to be an oversight. However, the statute also omits the language about mimicking the effects of cannabinoids, which was almost impossible to prove. In its place, the statute now addresses “core components,” “group A components,” and “link components.” 5To further assist prosecutors, the legislature outlined four ways that assembly of these components is illegal. The chemistry begins to get a little difficult here, but the math illustrates the new law perfectly. The old law listed 162 illegal substances, plus anything that mimics cannabinoids. The new law lists 23 illegal substances, plus 5,460 possible combinations of the various components. Currently, if a criminal possesses one of these 5,483 substances, a chemist can testify as to what that substance is and exactly how that substance fits into the code. Ultimately, chemists, lab technicians, doctors, nurses, and law enforcement experts worked with prosecutors and legislators to craft laws that actually allow us to prosecute the sale, distribution, possession, and manufacture of these synthetic compounds. It’s a win for the white-coat-wearing lab peeps, and sorry (not sorry) to the dirty, garage-lab rats.

Anthony Carter, we meet again
Anthony Carter learned during his 2014 prosecution for deceptive trade practices that selling SynCanns was illegal, but he apparently didn’t care.
    In 2016, the Lubbock Police Department launched a new division, the Homeless Outreach Team, or HOT for short. The primary purpose of this division is to help keep the homeless out of jail and divert them to services or shelters. HOT works to help the homeless become successful by building relationships with them while also identifying physical, mental, educational, and employment needs. While building these relationships, it became apparent that synthetics were the drug of choice among the homeless population. The team personally witnessed the effects of such drugs on these individuals and began collecting information on sources of supply through interviews, recovered packaging and receipts, and surveillance. The Tobacco Road on Avenue Q was the biggest problem and perfect storm because it was conveniently located by a park, the bus station, churches, and soup kitchens, all of which provide services for Lubbock’s homeless people. Sergeant Korie Archembault with HOT felt like the people he had taken an oath to protect and serve were valued cizitens and not mere “zombies” left to Carter’s control. Something had to be done.  
    In January 2017, HOT sent Officer Tony Chacon in an undercover capacity, wearing mismatched clothes to play the part of a homeless man, to purchase synthetic from Tobacco Road. Officer Chacon was making his way from the bus station towards the Avenue Q location when he was approached by an actual homeless man. The man simply wanted to tag along with Chacon to Tobacco Road so they could make a purchase and get high on synthetics. When Officer Chacon reached the shop, he walked up to the drive-through, as was customary, purchased two packages of Chilly Willy, and walked away. This buy was used to obtain a search warrant where 683.7 grams of SynCann and $3,081.21 in cash were seized. During the search, Anthony Carter arrived on scene and was told by officers that what he was selling was illegal.  
    After the HOT warrant, and despite the continued warnings that he was selling illegal drugs, Anthony Carter did not stop dealing. So beginning in February 2017, the narcotics division of the Lubbock Police Department began a more in-depth investigation into Anthony Carter. Instead of just focusing on the Avenue Q shop, they decided to see if undercover officers could make additional purchases from Mr. Carter’s other smoke shops. Customers access these shops by pulling up or walking up to a drive-up window and placing an order with the store clerk. Handmade signs with the products available for purchase, along with the pricing, were on display at each drive-through. On February 13, an undercover officer bought Chilly Willy 5g from Mr. Carter’s Avenue A store, and on March 29, an undercover officer purchased Chilly Willy, Ripped, and Mary Jane. Additionally, two bags of Ripped were purchased from the Avenue Q shop. On April 3, an undercover officer bought two packages of Ripped from the third of Carter’s shops (which had the reputation as “harder to buy from”) on Parkway Drive.
    During this 2017 investigation, surveillance was conducted on Anthony Carter, his home, and his businesses. Officers saw a pattern of Carter leaving his residence between 8:45 and 10:00 a.m. and going to the Avenue Q, Avenue A, and Parkway shops, and he would either stop at the bank afterward or go straight home. He’d make the same loop between the three stores in the afternoon or evening.
    On May 1, LPD officers made another controlled purchase of, you guessed it, Chilly Willy, but this buy was special. Anthony Carter was actually in his store at the time and directed the clerk to wait on the customer (the undercover officer). The DPS lab was great and rush-tested all of the buys so that we would have probable cause for warrants (and later for the criminal case). Based on the buys and the lab results, LPD obtained search warrants for all three Tobacco Road locations, as well as Carter’s home, and on May 3, the warrants were simultaneously executed. After the smoke settled, LPD had seized over 15,000 grams of SynCanns, thousands of dollars of U.S. currency, one handgun, one Cadillac Escalade, and two Porsches. Anthony Carter was arrested in one of his vehicles a short distance from his house along with synthetics consistent with the brands sold at his shops.
    The DPS lab results from our warrants and buys revealed that our main synthetic was fluoro-ADB. This is not one of the 23 listed substances in the statute, but it was made illegal under the 2015 amendments to H&SC §481.1031. Fortunately, DPS chemists are trained to recognize and test for these substances. Wonderfully, our lab report did not just identify the substance and list the mass in grams like it would with cocaine, but it also identified which core component, group A component, and link component the substance had, and the report even specifically listed which subsection of §481.1031 the drug violated. All the drugs from all the Carter seizures were tested by the same chemist, John Keinath. He was great. Not only did he have to test all of the mounds of stinky—and we mean stinky—chemicals, but he also worked with us from the time of indictment to the very last case presented at punishment. He made us charts for visuals and made sure we understood the science behind the drugs so the jury could understand as well. Everyone knows what cocaine and heroin are, but we wanted to make sure we could thoroughly explain fluro-ADB to jurors. We also wanted our indictment to accurately track the statute, and our chemist’s understanding of both the statute and the drug proved invaluable to our success.  
    So we had illegal drugs for which we could prosecute Mr. Carter, but we weren’t in the clear by a long shot. We still had to overcome two main obstacles: First, the science aspect of the drugs was confusing, and second, we had to show that just because Carter sold these drugs in the open and from a storefront didn’t mean it was legal. We would need to choose our case-in-chief based on these built-in problem areas. The clear choice was Carter’s house warrant. The items yielded in this warrant would allow us to connect the dots for the jury: additional surveillance of Carter between his shops and home, text messaging, and financial and business information. Additionally, the house had the largest amount of recovered synthetics including ALL of the brands that Carter sold at his shops. (It was a true “stash house” in every sense of the term.) The main items tested under this warrant were 601 manufacturer-sealed zipper bags of Chilly Willy 2G Chronic Hypnotic containing fluoro-ADB, with a weight of 2.55 kilograms. We indicted Carter for possession with intent to deliver, over 400 grams, resulting in an aggravated first-degree case with a range of punishment of 15 years to life.  

The trial
In November 2017, after a motion for speedy trial, Lubbock’s first synthetic case was presented to a jury in a week-long trial. During the case-in-chief, Manuel Reyna with the District Attorney’s Office and Investigator Matt Barber and others with the Lubbock Police Department Narcotics Division and HOT went through documents and items seized at Anthony Carter’s home and businesses, including bank statements and legal documents for Carter and for “JBHAA” and “Bajaha,” his incorporated names. Account statements from four different banks all showed large deposits and withdrawals, including cashiers’ checks written to “DRL Wholesale,” which we believed to be Carter’s SynCann supplier.
    The jury was presented with a download of Carter’s phone, which revealed texts dating back to August 2016 where his source assured Carter that they would be back to “business as usual” as soon as they got the kinks worked out with international shipping. The texts continued, right up until Carter’s arrest, showing that he ordered packages of synthetics (thousands at a time) and that he paid his source (also thousands at a time) for the poison. The financials, coupled with the texts with his source, showed the jury Carter’s drug operations and his knowledge and intent with the illegal synthetics. Also introduced were messages between Carter and his employees where he would bring them more supply and collect proceeds from sales, showing his control over the day-to-day business of dealing. The jury saw bags of receipts from the shops that documented the illegal sales of synthetics by name. Specifically, in the month leading up to the investigation, the Avenue Q shop alone sold a total of $121,134.84 in Chilly Willy, Ripped, and Mary Jane SynCanns. The officers were able to testify that based on the totality of the circumstances, Carter’s business was run like any other illegal drug enterprise that they encounter on the streets.  
    The defense focused its case on Carter’s mistake-of-fact claim, that the products he sold were legal. He argued that because he believed his products were legal, he paid sales taxes on them and sold them in the open. They also argued that Carter had his drugs tested by an independent Drug Enforcement Agency (DEA)-certified laboratory that didn’t find illegal chemicals. He argued that he did not intend to break the law and was therefore not guilty.  
    We countered his arguments through testimony and the evidence as a whole. As for the defense’s lab reports, our chemist explained that the DEA-certified lab was not checking for state-banned items and did not check specifically for fluoro-ADB. Plus, the lab results were provided by Carter’s source, and he requested them after a raid to avoid culpability. (You don’t have to worry about the science behind the law if you aren’t trying to circumvent the law, which is what SynCann producers have been doing all along.) We argued that ignorance of the law was not an excuse and that the text messages between Carter, his suppliers, and his employees showed he knew the products were illegal. In text messages after the January raid, Carter wanted to make sure his customers (who were going through withdrawals) would at least have Bizzaro or Scooby Snax available until he was able to re-up his supply of the good stuff. The most telling testimony to counter his defense came from Sgt. Archembault, who told jurors that Carter’s employees refused to sell him products when he approached the stores in full uniform. The undercover buys and the money these shops made speaks for themselves.
    On Day Five of trial, and after deliberating for about an hour and 15 minutes, the jury found Mr. Carter guilty as charged in the indictment, and we moved into punishment. Jurors heard evidence of the additional undercover buys from and search warrants for Carter’s shops, which yielded hundreds of bags of synthetics and large amounts of cash. The jury was presented with  items from Anthony Carter’s bedroom, which contained research on the deadly effects of synthetics, some of which were news reports of actual Lubbock events.
    The jury also heard testimony from Charlotte Williams, an emergency room nurse at University Medical Center. She testified about the effects she has witnessed of individuals under the influence of synthetics in the hospital. Charlotte is a member of NEIDS (Nurses Educating on Illegal Drugs and Synthetics), and these folks speak all over Texas about the medical consequences of synthetics. She has seen as many as 20 to 30 patients a day in the emergency room because of these drugs, and they range in age from 18 months to 70 years. Some patients experienced hallucinations while others lost the ability to speak. In severe cases, some people suffer cardiac arrest and die. She went on to say that people under the influence are violent to others, law enforcement, and the staff, and often exhibit super-human strength.
    In closing, we argued that Carter’s was the worst kind of drug dealing because it wasn’t confined to a certain area or a specific scary house, but rather his drugs were packaged and advertised ostentatiously as legal and sold openly in public. Time after time, Anthony Carter was warned, yet he continued his drug-dealing business. The jury had before them almost 2,000 packets of his poison. Mr. Carter’s bottom line was his greed—it was about him making a profit. We told the jury that Mr. Carter was a businessman, and today was the day for him to count his losses. We asked jurors to send a message to him and anyone like him who might think about setting up a “legal weed” shop in Lubbock.  
    After half an hour of deliberation, the jury sentenced Anthony Carter to 90 years in prison. And for the businessman Anthony Carter, the jury included a $100,000 fine. His case is currently on appeal.

Conclusion
For years and despite repeated warnings, Anthony Carter peddled poison for money using loopholes in the law and built his business on the backs of Lubbock’s most marginalized. The law closed the scientific gap, and law enforcement and those in the medical field saw an epidemic in the city and responded. The jury sent Carter—and anyone else engaging in the same criminal activity—a final warning:  SynCanns are not legal and will not be tolerated. It was a good day, a day when justice delivered one heck of a blow to the junk science trickery behind SynCanns!

Endnotes

1  Tex. Health & Safety Code §481.1031.

2  https://en.wikipedia.org/wiki/Synthetic_cannabinoids.

3  Pat Pizzo, Presentation at the NADCP National Conference (July 15, 2013).

4  Tex. Health & Safety Code §481.1031 (2011 version of the statute).

5  Tex. Health & Safety Code §481.1031 (2015 version of the statute).