The rise of the synthetics

Brian Foley

Assistant District ­Attorney now in Montgomery County (formerly in Polk County)

Synthetic marijuana and other “designer drugs” are easy to find and buy but hard to prosecute. Polk County prosecutors recently went after a fake-weed dealer.

When officers awoke Cameron Moseley from an apparent fake-weed hangover, he had been passed out in his vehicle with multiple trash bags full of fake weed and a shotgun. After Moseley was Mirandized, he told police that he was selling synthetic marijuana and that the shotgun belonged to him.
    When I read these facts in the offense report, I nearly stood up on my desk and shouted with excitement. Then I read that Moseley was a felon who was convicted of arson in North Carolina and even had a prior juvenile burglary of a habitation from my county. So he was a felon in possession of a firearm, and his minimum punishment would be 10 years for possession with intent to deliver a controlled substance Penalty Group 2-A over 400 grams. This case was looking great for the State.
    The lab report identified the substance as XLR-11. “Great,” I thought. “I’ll check TDCAA’s Annotated Criminal Laws of Texas book (the red one), flip to the Controlled Substances Act, and start looking for XLR-11. XLR-11 … XLR-11 … where is it?” I nearly threw the file across the room when I saw that XLR-11 wasn’t listed among the known fake weeds in Penalty Group 2-A.
    That could have been the end of our case against Cameron Moseley. But it wasn’t, thanks to a careful reading of the Health & Safety Code and the Ninth Court of Appeals agreeing with me that Penalty Group 2-A is not an exclusive list. This article explains why the appeals court agreed and how we can prosecute these cases in any Texas jurisdiction right now.

The challenge of synthetic drugs
Synthetic drugs—including fake weed, molly, bath salts, and 25i-NBOMe (fake LSD)—are starting to ravage our state and our youth. They began appearing in our country with greater regularity in the mid- to late-2000s,1 and the number of emergency room visits involving fake weed more than doubled from 2010 to 2011.2 The packaging on these “designer drugs” is often bright and colorful, and they are marketed like legitimate products; they are even sold at gas stations and smoke shops. Until 2011 many of these substances were not regulated in Texas, and some remain unregulated today. Texas finally passed a ban on fake weed when the legislature created Penalty Group 2-A in the 82nd Regular Session, but it did not stop the surge in the use of fake weed.
    People who manufacture and sell fake weed at gas stations do not label it “fake weed.” The label says Kush, Fire & Ice, Scooby Snax, Spice, OMG, K2, Ultra Zombie Matter, or Psycho Potpourri. And the packages almost always say “not for human consumption.” Why? Because drug dealers have figured out how to evade some federal drug laws. Synthetic drugs can be altered slightly so that their chemical structures fall outside the list of identified controlled substances prohibited by federal law. When this happens, federal prosecutors can use a controlled substance analogue provision that allows for prosecution if the substance in question is similar to an identified and prohibited substance. But before federal prosecutors can try someone for selling a controlled substance analogue, they have to prove that the substance is “for human consumption.”3 That is why all the synthetic drug packaging in Texas communities has this language about not being for human consumption. Moreover, when the feds began identifying and prohibiting the main chemicals in fake weed, such as AM-2201, the packaging started to include the note, “Does not contain AM-2201.” These criminals are smart.
    When a prosecutor asks a chemist if an analogue is the same as its illegal counterpart, the chemist says absolutely not. But ask a junkie on the street if the drugs are the same, and the junkie cannot tell the difference. In most instances the slight changes to a designer drug’s chemical makeup do not change the drug’s effect on an individual at all.

Controlled substance ­analogues
In Texas, we do not toil under the same restrictions as our federal counterparts, even though we also have a controlled substance analogue provision. That provision allows prosecution of a non-listed substance if the substance 1) has a chemical structure substantially similar to the chemical structure of a controlled substance listed in the applicable penalty group or 2) is specifically designed to produce an effect substantially similar to or greater than a controlled substance listed in the applicable penalty group.4 There is no requirement that state prosecutors prove that the product is “for human consumption.” There is not even a requirement that the drug have a similar structure if the effect of the drug was designed to be “substantially similar to or greater than” an illegal drug.5
    The problem is that the controlled substance analogue provision in Texas applies only to substances similar to those listed in Penalty Groups 1, 1-A, and 2.6 Penalty Group 2-A did not make the cut. And once I came to that conclusion, Cameron Moseley’s file nearly flew across the office for a second time. But I plodded onward determinedly.
    I read that the Health & Safety Code broadly defines which drugs fall into Penalty Group 2-A: “Penalty Group 2-A consists of any quantity of a synthetic chemical compound that is a cannabinoid receptor agonist and mimics the pharmacological effect of naturally occurring cannabinoids, including: [a really long list of strangely named chemicals that, at the time of the bill’s passage, were known to fall into the broadly defined category].7 …”8 That word “including” was key—when I read that, I knew that I just might have an argument encompassing Mr. Moseley. It was clear that he had possessed, as the statute says, well over 400 grams of a synthetic chemical compound that was a cannabinoid receptor agonist (meaning that it stimulates the same part of one’s nervous system that THC does) and mimicked the pharmacological effect of naturally occurring cannabinoids (e.g., it gets you high).
    In charging Moseley, I made sure that the indictment tracked the language of the Health & Safety Code’s broad language for Penalty Group 2-A. I did not specify that the drug is XLR-11 because the name of the chemical doesn’t matter—what mattered is whether we could prove it was fake weed using the general description in the beginning of the statute.
    The defendant filed a motion to quash the indictment, and the trial judge granted the motion. I filed a State’s appeal, and my brief to the Ninth Court of Appeals focused on the difference between the language of Penalty Group 2-A and the language of the other penalty groups with regard to legislative intent. The language “including”—followed by the list of drug names—means that Penalty Group 2-A is not an exclusive list of substances which fall into the category. In fact, “any quantity of a synthetic chemical compound that is a cannabinoid receptor agonist and mimics the pharmacological effect of naturally occurring cannabinoids” will fall into Penalty Group 2-A.
    The intent of the legislature was clear through the bill analysis. “C.S.S.B. 331 criminalizes the manufacture, sale, and possession of the unregulated compounds by broadly defining subclasses of synthetic cannabinoids but explicitly listing compounds that have been identified in products currently on the market.”9 The legislature knew that fake weed was an increasing problem throughout the state and that the chemical compounds that make up fake weed would change rapidly. To allow for successful prosecution, lawmakers used this broad language and an inclusive list.
    The language of Penalty Group 2-A is in stark contrast to all other penalty groups, which consist of only exclusive lists.
    “Penalty Group 1 consists of: 1) the following opiates … 2) the following opium derivatives … 3) the following substances … 4) the following opiates …”10 This language clearly indicates the legislature’s intention to make the list exclusive. Only “the following” substances are described by Penalty Group 1.
    “Penalty Group 1-A consists of: lysergic acid diethylamide (LSD), including its salts, isomers, and salts of isomers.”11 That is the entirety of Penalty Group 1-A and it therefore doesn’t need a list or a broadly defined category.
    “Penalty Group 2 consists of: 1) any quantity of the following hallucinogenic substances …”12 It does not have the word “including” before the list of substances and has the same use of “the following,” making it an exclusive list.
    “Penalty Group 3 consists of: 1) a material, compound, mixture, or preparation that contains any quantity of the following substances … 2) a material, compound, mixture, or preparation that contains any quantity of the following substances … 3) Nalorphine; 4) a material, compound, mixture, or preparation containing limited quantities of the following narcotic drugs. …”13 Penalty Group 3 follows the same method of providing an exclusive list by limiting the substances to “the following.”
    “Penalty Group 4 consists of: 1) a compound, mixture, or preparation containing limited quantities of any of the following narcotic drugs. …”14 Penalty Group 4 also follows the same method of providing an exclusive list by limiting substances to “the following.”
    Oral arguments on the State’s appeal focused on the language and structure of Penalty Group 2-A.15 And when the Ninth Court of Appeals in Beaumont released its opinion, the court said, “The Legislature’s definition of the term ‘including’ is clear and unambiguous.16 … In applying this definition to §481.1031, we conclude the specific list of substances identified in the statute is non-exclusive and Penalty Group 2-A should be interpreted as including any ‘synthetic chemical compound that is a cannabinoid receptor agonist and mimics the pharmacological effect of naturally occurring cannabinoids.’17 … There is nothing absurd about the Legislature drafting the statute to allow for the inclusion of those substances not yet identified by name when the statute was drafted but that share the characteristics identified in the statute as constituting Penalty Group 2-A.”18
    Defendant Cameron Moseley pled guilty after the appeal to the State’s offer of 10 years in prison.

How do you actually prove the effects?
When the State seeks to prosecute under the broad category of Penalty Group 2-A, prosecutors must provide evidence of how the substance operates chemically. To prove this, I planned on using Gregory Enders, who works at Cayman Chemical in Ann Arbor, Michigan. He is an expert in this field and is familiar with the chemical structure of almost any fake weed out there. He has been gracious enough to allow me to refer him to other prosecutors facing these problems. And Mr. Enders knows more than merely the science—he is also a frequent presenter to legislatures around the country in their attempts to put synthetic drug-dealers behind bars. His assistance is something that other Texas prosecutors may want to secure for the highest-level drug offenses in their jurisdictions.
    So how does one prosecute a misdemeanor-level fake weed case with a substance not yet listed in Penalty Group 2-A? Unfortunately, an analyst from the Department of Public Safety cannot testify to the effects of any Penalty Group 2-A substance, nor are there any studies on the matter because these drugs are too new. The best information we can get from a State chemist is verification that the substance is synthetic.
    However, there may be a treasure trove of information on the packaging of the product itself. Along with references to the federal statute’s requirement for “human consumption,” the name of the chemical from which it was derived may be included on the packaging (to assure consumers that it “does not contain JWH-018”). But this has not been tried yet and there are no cases on the subject for sufficiency of the evidence. A final possibility may be to simply ask the defendant what the product does. Is it like marijuana? Does it affect users the same way?

Conclusion
It is not as easy to produce these products as it is to make methamphetamine—it is unlikely we will find a mobile home with a K2 lab inside. And the distribution of these products is much broader in scope. We may want to focus our efforts on identifying the location from which the drugs are imported and who is distributing them. We may find, as the Drug Enforcement Administration did, that we can trace “the massive flow of drug-related proceeds back to countries in the Middle East and elsewhere.”19 The influx of synthetic drugs is particularly concerning when one realizes the criminal enterprises involved are crossing international boundaries.
    I hope State v. Moseley helps prosecutors see that justice is done in every Texas jurisdiction. If you are struggling with how to charge a case like this or how to prove it, please contact me at [email protected] I certainly don’t have all the answers, but I may be able to point you to someone who does.

Editor’s note:  As this issue of the journal was going to press, the Office of the Attorney General (OAG) sent out a news release to Texas prosecutors alerting them that the marketing and packaging of “designer drugs” often violates §§17.46(a) and (b) of the Texas Deceptive Trade Practices Act (DTPA). The OAG offers to bring a civil action under the DTPA against people and retail businesses that sell synthetic marijuana to obtain an injunction against the seller prohibiting sales of such drugs and obtain a judgment for civil penalties. Of course, county attorneys are authorized to bring their own DTPA actions against these drug sellers (without partnering with the attorney general), but those who want to join forces with the OAG are encouraged to contact Tommy Prud’homme at Tommy.Prud’[email protected] for more information. See also the cover story of this issue for more information on injunctions.

Endnotes

1 Synthetic Drugs Overview and Issues for Congress, Congressional Research Services R42066.
2 Id. at 2.
3 Title 21, U.S.C. Controlled Substances Act §813. “A controlled substance analogue shall, to the extent intended for human consumption, be treated, for the purposes of any Federal law as a controlled substance in schedule I.”
4 Texas Health and Safety Code §481.106.
5 Id.
6 SB 173 adds XLR-11 to the list of Penalty Group 2-A substances and adds Penalty Group 2-A to the Controlled Substance Analogue provision in Texas Health and Safety Code §481.106. SB 461 adds Chapter 484 to the Texas Health and Safety Code providing civil and criminal penalties for the false and misleading packaging of abusable synthetic substances. Both are effective September 1, 2015.
7 These chemicals get their name from the initials of the person who discovered them. For example, JWH-018 was discovered by John W. Huffman. Mr. Huffman was an organic chemist from the University of Clemson who began research on synthetic marijuana in the 1980s.
8 Texas Health and Safety Code §481.1031
9 Shapiro et al., Criminal Justice Committee Report, March 23, 2011, Bill Analysis, Senate Research Center, 82R16861 JSC-D (emphasis added).
10 Tex. Health & Safety Code §481.102 (emphasis  added).
11 Tex. Health & Safety Code §481.1021 (emphasis  added).
12 Tex. Health & Safety Code §481.103 (emphasis  added).
13 Tex. Health & Safety Code §481.104 (emphasis  added).
14 Tex. Health & Safety Code §481.105 (emphasis  added).
15 I used the analogy that the legislature could have banned all sodas, “including” a sub-group of Coke, Cherry Coke, and Vanilla Coke, and another sub-group of Dr Pepper, Cherry Dr Pepper, Cherry Vanilla Dr Pepper, etc., but that as long as I could prove the substance was soda, then it would fall under the new penalty group of banned sodas. The oral argument concluded with one of the justices asking for assurance that Dr Pepper was still legal—followed by laughter from all parties and the court.
16 State v. Moseley, 09-14-00279-CR (Tex. App.—Beaumont, 2015).
17 Id.
18 Id.
19 U.S. Drug Enforcement Administration, “Updated Results from DEA’s Largest-Ever Global Synthetic Drug Takedown Yesterday,” Headquarters News, June 26, 2013.