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Legal Updates
Related to Psychoactive Issues
by Fire Erowid
May 2003
Citation:   Erowid F. "Legal Updates Related to Psychoactive Issues". Erowid Extracts. May 2003;4:4-5.
In recent months there have been a number of groundbreaking arrests and legal developments affecting the world of psychoactives.

Spore Vendor Arrested
According to media reports and a Department of Justice press release, on February 18, 2003, the owner of Psilocybe Fanaticus (Robert McPherson) and three others were arrested by Federal agents and McPherson's home was searched after a warrant was obtained. According to the Department of Justice, investigators found a growing operation for psilocybin-containing mushrooms. The DOJ press release says that McPherson admitted that he was growing mushrooms to produce spores which he sold through Psilocybe Fanaticus.

Robert McPherson, his wife Margaret McPherson, Stephen Coggin and Judith Kreigh were all indicted on February 25 on charges of conspiracy to distribute psilocin and the manufacture of psilocin.

One media report states that while the police recognize that the spores of psilocybin-producing mushrooms are not illegal, selling these spores with instructions about how to grow them is conspiracy to manufacture (or conspiracy to distribute) a controlled substance. This is only one interpretation, but federal prosecutor Doug Whalley compares this situation to selling the chemicals required to make methamphetamine along with instructions for how to produce it.

The Psilocybe Fanaticus website (fanaticus.com) has been down since shortly after the arrests. Because of this case, many other online spore vendors appear to have reconsidered their selling practices. Many have removed psilocybin-mushroom producing spores from their inventories or stopped all sales entirely. While possession of these spores may be legal, growing psilocybin mushrooms is generally considered production of psilocybin or psilocin, an illegal act. Some speculate that the conspiracy charge may eventually be dropped and Mr. McPherson may be prosecuted only on the manufacture of psilocin charge.

Operation Pipe Dream
In March 2003, in joint operations titled "Operation Pipe Dream" and "Operation Headhunter", federal agents shut down a number of manufacturers and vendors who sold glass pipes, water pipes, and rolling papers. At least 55 individuals were indicted under charges that they were violating federal paraphernalia laws by selling pipes intended for use with Cannabis, a controlled substance.

While these operations have been widely reported in the national media, one aspect of the cases which has received less attention is the "confiscation" or "seizure" of the domain names used by some of the vendors. In an unusual step, the Drug Enforcement Administration requested a court order to redirect more than a dozen vendor sites to a warning notice at the DEA website. The warning states:

"By application of the United States Drug Enforcement Administration, the website you are attempting to visit has been restrained by the United States District Court for the Western District of Pennsylvania pursuant to Title 21, United States Code, Section 853(e)(1)(A)."
The cited statute permits the government to take action to "preserve the availability of property" that would be subject to forfeiture in the case of conviction.

But unlike a car or pile of cash, a domain name can't disappear if you stop paying attention to it. It's quite possible to gain control of a domain name after a conviction without ever redirecting it to a government site. Redirection of a website goes beyond "preserving availability" of an asset and instead effectively forces a particular type of speech by putting words in the mouth of the website owner, prior to their being convicted of a crime. It's akin to the government seizing a print publisher's company and publishing new books and government pamphlets under the publisher's name.

At this point, there is no known precedent for confiscating domain names or websites. We'll be watching this case carefully for further developments.

LSD Missile Silo Case
After nearly two years, a verdict has finally been reached in the case of Leonard Pickard and Clyde Apperson, who were accused in November 2000 of setting up an LSD manufacturing lab in a decommissioned missile silo in Wamego, Kansas.

On March 31, 2003, Pickard and Apperson were convicted of conspiracy and possession of LSD with intent to distribute more than 10 grams. The trial lasted more than eleven weeks but jurors deliberated for only six hours before reaching a guilty verdict. Each defendant faces a minimum of ten years in prison to a maximum of life in prison without parole. Sentencing is scheduled to begin August 8, 2003. According to Pickard's website, he plans to appeal the verdict.

There is unsupported speculation that the arrest of Pickard and Apperson in 2000 precipitated a shortage of LSD in the U.S. in 2002. However, it is common for availability of black market drugs to go through cycles. Erowid has received reports of LSD shortages since 1995 as well as recent reports from various parts of the country that LSD is plentiful: the laws of supply and demand at work.

RAVE Act Becomes Law
On April 10, 2003, the act previously called the "RAVE Act" passed both houses of Congress, and was signed into law on April 30. The act was first introduced in July 2002, but failed to pass before Congress adjourned for the year. In January 2003 it was appended to the "Amber Alert" bill in a slightly modified form.

The advertised intention of the act was to reduce the use of MDMA and other drugs by expanding the so-called "crack house" statute that allows prosecution of property owners who knowingly allow their buildings to be used "for the purpose of unlawfully manufacturing, storing, distributing, or using a controlled substance".

The changes enacted by the "RAVE Act" provisions are relatively minor, but have led to concern that the government is gearing up to go after rave promoters.

There are three primary changes implemented by the new law. The term "occupant" is added to "owner, lessee, agent, employee, or mortgagee" in the list of who can be held liable. The description of qualifying property is changed from "building, room, or enclosure" to simply "place". This suggests that property where outdoor events are held can now be targeted. The new bill also changes the maximum allowable fine from $500,000 to whichever is greater, $250,000 or twice the gross receipts derived from each violation.

The original version of the act contained language specifically describing raves as the target of the legislation and the name itself clearly implicated rave promoters. After going through several incarnations, all of this language has been stripped from the text. The law as passed does not specifically name any targeted group, though there is still justifiable concern that raves are the implicit target.

DEA Tries To Ban Hemp Foods
Five months after the DEA originally issued an Interpretive Rule banning hemp seed and hemp oil based food products that contain any amount of trace residual THC, it published a Final Clarification Rule in the Federal Register that would ban hemp food products that contain "any" amount of THC.

The final ruling was scheduled to go into effect April 21, 2003. But in response to a request by the Hemp Industries Association, the 9th Circuit Court of Appeals issued a temporary stay on April 18, effectively blocking the DEA from implementing its new rule.

In a news release issued with their ruling, the DEA stated, "These cannabis products, which are referred to by some members of the public as ‘hemp' products, often contain the hallucinogenic substance tetrahydrocannabinols (THC)." The DEA failed to acknowledge that trace amounts of THC have no psychoactive effect.

The hemp industry has established a TestPledge program, identifying companies that commit to quality control measures which limit the amount of trace residual THC. However, since the DEA has not specified a detection protocol and a corresponding limit of detection, companies have no way of determining whether their products would be legal under the DEA's new rules.

The DEA also issued a Final Interim Rule exempting hemp bodycare and fiber products from DEA control; however, this rule does not allow hemp seed or oil to be imported into the U.S. for processing and manufacturing. The U.S. is the only large industrial nation that doesn't distinguish between industrial forms of hemp and cannabis as a psychoactive.

JLF Case
As reported in the December 2001 issue of Erowid Extracts, JLF Poisonous Non-consumables, a vendor of plants, herbs, and chemicals, was raided by the DEA in September 2001. For years, JLF has required that customers agree that purchased products are not for human consumption.

Despite this fact, inventory and assets were seized and its owner, Mark Niemoeller, was arrested and indicted on eight federal counts of violating the Food, Drug, and Cosmetic Act, and five counts of violating the Controlled Substances Act. There were three primary charges in the indictment. The first was that Niemoeller distributed "misbranded prescription drugs"--including L-Dopa, dopamine and clenbuterol--on eight occasions from 1999 through 2001. Second, it alleged that he dis-tributed 2CT7 and 1,4-butanediol, which the indictment described as "controlled substance analogs", on three occasions in 2001. And last, that Niemoeller distributed safrole, "a precursor chemical for the manufacture of MDMA", on two occasions in 2001.

On January 30, 2003, Niemoeller was found guilty on the eight counts of distributing misbranded drugs. Sentencing has not yet taken place and the five additional charges have not yet gone to trial.