Vol. 14, Ed. 36 September 8 - September 14 2005

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Why we all can't just get a bong

How the federal crackdown on paraphernalia crippled an industry

By Paul Derienzo

On February 24, 2003, U.S. Attorney General John Ashcroft announced the indictments of 55 people on charges of selling drug paraphernalia. The arrests were based on two federal investigations: Operation Pipe Dreams, in Pittsburgh, Pennsylvania; and Operation Headhunter, in Des Moines, Iowa. But the scope was “extra jurisdictional.” In other words, the busts spanned America. Across the nation, 2,000 federal, state and local officers swept down on business people. The busts came down in Idaho, Texas, Iowa, Pennsylvania, Florida and Ohio. Several of the people indicted were well known; the most notorious was comedian-actor Tommy Chong, who served nine months in federal prison. Chris Hill, founder of Chills, a well-known purveyor of rolling papers and other smoking products, got 14 months.

The 2003 busts signaled a sea of change in federal paraphernalia prosecutions. Up to that time, most investigations were aimed at retailers. Now the target was the distributors and manufacturers. Another new development was the seizure of distributors' websites. The government didn't just seize these sites, however; they replaced them with an anti-drug message.

Famous Oregon glass pipe blower “Jerome Baker Designs'” website currently sports a U.S. flag logo and a less than terrifying message: “…ththe website you are attempting to visit has been restrained by the United States District Court for the Western District of Pennsylvania.”

Robert T. Vaughn is an attorney who has spent his career fighting drug paraphernalia laws. He also publishes a newsletter titled The Letter of the Law, which has dealt with the paraphernalia industry's unique legal challenges for more than 20 years. Since 1981 he's litigated paraphernalia cases in 31 states, and was once indicted himself. Vaughn says the government eventually dropped the charges, but kept him too busy to fight a spate of new federal anti-paraphernalia laws. Vaughn says, “It's simple. If you have a bong, you're violating federal law. You can get a license to own a tommy gun, but you can't get one to own a bong. Stores that have bongs are screwed. They can't win.”

In Anchorage, the sale of drug paraphernalia has long been banned. A 1997 sweep of four city shops, including The Look and the Black Market, resulted in the seizure of merchandise that police said was intended for use with illegal drugs - principally marijuana - just as the Christmas shopping season began. The cases never went to court. Much later, the merchandise was returned, because police had wrongly used a criminal warrant in what should have been a civil action. That, said APD detective Dennis Allen, was “a slap in the face.”

The Anchorage Assembly made the sale of drug paraphernalia a criminal offense in 2000. In 2001, Anchorage Police, now assisted by National Guard members, again raided shops that sold bongs (among other things), including Really Neat Stuff and the Black Market. In 2002, a jury found Really Neat Stuff owner Chris Main guilty of selling paraphernalia; he was sentenced to 20 days in jail and a $2,500 fine. The day after the Main verdict, police raided the Black Market again. The Black Market's owner was subsequently convicted; they're appealing that.

There was a time back in the early and mid-1970s when every town had its head shop. Head shops were where papers, pipes and bongs shared space with black-light posters, incense, and lava lamps. But most head shops couldn't survive the 1980s anti-pot atmosphere epitomized by first lady Nancy Reagan's “just say no” philosophy. In August 1979, the Drug Enforcement Agency had come up with what they called the “model enactment.” It was a proposed anti-paraphernalia law designed for the then-difficult task of passing constitutional muster in every state.

The first attempt was a licensing law that was approved by the Supreme Court in 1982. West Virginia is the only state where paraphernalia can be bought and sold legally with a license. But West Virginia still can't grant you a tommy gun license, since federal law bans automatic weapons. So, in the mid-1980s congress stepped in to target the paraphernalia industry under Representative Jim Wright's Omnibus Drug Bill.

John is a distributor in California, but he doesn't distribute bongs, pipes or anything else remotely like pot or drug paraphernalia. But he's worried enough to want his identity kept quiet. What John deals in are what he calls “First Amendment materials” - marijuana grow books, magazines like Cannabis Culture, Heads and High Times, and little hemp hackeysacks and other doo-dads. John likes a low profile because he says he notices that “people who expose themselves are targets.” He says that he's seen too many people with a high profile in the business get busted.

John says he wanted to be an astronomer, but when NASA's budget got cut he had to find a new career. He started out as an accountant and then went to work for Ask Ed Rosenthal, eventually buying the part of his business that distributed books. Things were not great, but except for a couple of ups and downs, they went smoothly for the most part.

That is, until about three years ago, when John's phone stopped ringing and retailers stopped ordering. They government was busting his customers, putting people in jail, imposing fines and putting people out of business. But John says he noticed something else. After about a year his sales started picking up, not in the U.S., but first in Canada and then in Europe.

John realized that U.S. tourists travelling in Canada and Holland were buying his grow books and returning with them to the U.S.. His European customers responded by selling more books.

Then Tommy Chong got busted. The TV star and pot funnyman had been as public as you could be, offering his drug de-tox products in full-page ads in High Times every month. At that point, John says, “I knew the business I was in was heading for a rocky road.” Former High Times Editor-in-Chief Richard Stratton says the effect of the Chong bust was “chilling. It was like an American Taliban.”

Paraphernalia distributors had much more success in the past staying one step ahead of the feds. “Our experience was greater,” Vaughn says. “They didn't know who the players were; there were blanks to be filled in over the years.” But in 1990, the Supreme Court ruled drug-paraphernalia violators could be subject to Racketeer Influenced and Corrupt Organization (RICO) and money laundering charges. That gave an incentive to prosecutors: they could seize assets, cash, and other holdings in the same way they prosecute organized crime and money laundering.

In 1994 the Supreme Court dealt another blow to the paraphernalia industry with the Posters N' Things decision, which approved a so-called “subjective standard” for defining what drug paraphernalia is.

Before Posters N' Things, a distributor or a retailer had to discourage intent, by a customer, to use pipes and bongs for illegal drugs. That's why customers at head shops would often see prominent signs above pipes with the warning “for tobacco use only.”

In Poster N' Things, the Court actually included a footnote with a definition of a bong. The decision also included a laundry list of items that could be used for illegal drugs. If an item is sold with certain designs, be it marijuana leaves or High Times logos, it can be considered illegal paraphernalia.

The list checks off categories of items: chillums, bongs, wired cigarette papers, roach clips (meant to hold “burning material… t that has become too small or too short to be held in the hand”) are listed with an item described simply as “cocaine freebase kits.”

By 1999 the government was ready for a coordinated sweep, this time not just of retailers, but also of distributors, internet sites and manufacturers. According to Vaughn the latest sweeps began when the initial victims of Posters N' Things cases got out of jail, and began complaining about selective prosecution because other paraphernalia distributors weren't being arrested. A federal prosecutor for the Southern District of Iowa named Lester Paff, based in Des Moines, took the lead.

Paff is someone who knows how to make busts outside his immediate jurisdiction, and collect large sums of money using the RICO laws. The Des Moines federal prosecutor's office was headquarters for Operation Headhunter.

Paff wouldn't comment directly for this article. Southern District press spokesperson Al Overbaugh acknowledges Iowa has a long history of prosecuting head shops, adding with a little cheek, “we shouldn't ignore certain laws over others.” He says the law doesn't directly address magazines and grow books - “not to say they wouldn't be evidence” - but, he adds, “openly selling drug use material has an effect. It makes drug use seem OK and legitimate in society.”

Overbaugh says Operation Headhunter wasn't that financially lucrative. “We didn't end up with all that much money in all of our cases.” But, he says, “we can't put a company in jail, so we go after assets.” Forfeitures (assets seized under federal forfeiture laws) go to the Forfeiture Asset fund. The forfeiture money is usually returned to the state and local law enforcement, with a percentage going to various federal agencies.

But what happens to the seized merchandise? Overbaugh won't give too many details, but he says the contraband is kept in a storage facility until they run out of room, and they rent a Dumpster. Also, on a certain day, any law enforcement official that has some free time is invited to show up and help smash the glassware.

Allen F. St. Pierre, Executive Director of the National Organization for the Reform of Marijuana Laws, says prosecutors in paraphernalia cases have abused people's civil rights. According to St. Pierre, the paraphernalia laws are one of the “last great thought crime in America, because you're prosecuted for what prosecutors think you would use it for.”

But St. Pierre believes the government's heavy-handed tactics might be backfiring. He points out that when Tommy Chong was released from federal prison he was quickly invited onto “The Tonight Show,” where Jay Leno encouraged the comedian to plug his future work - and in effect, St. Pierre says, “stick his finger in the eye of the U.S. government.”

With tens of millions of pot smokers in the U.S., St. Pierre says he has no doubt that “there is no reduction in paraphernalia sales.” But he does say that the prosecutions have increased worry and fear among business people. NORML recently received calls from Florida, from small business people who've been visited by the police. Police were checking out their merchandise, and making threatening comments about possible prosecutions.

“As long as the wolf is at the door, there will be concern,” says Robert Vaughn. St. Pierre agrees and adds a warning: paraphernalia distributors “shouldn't go to bed without the burning sensation they will wake up and find yellow tape.”â—†

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