Gabriel Dillard

published on July 24, 2018 - 2:09 PM
Written by Gabriel Dillard

Synthetic marijuana is (or was) big business — enough to make $32 million in five months.

That’s a general takeaway from four weeks as a juror for a federal trial that began here in Fresno on June 22 and wrapped July 20.

I was among 12 people on a jury that found Douglas Jason Way, 45, of Evanston, Illinois, guilty of seven counts relating to a conspiracy to manufacture and distribute synthetic marijuana, commonly known by the street name “Spice.”

Spice is made using synthetic cannabinoids, which are chemicals made in a laboratory meant to approximate the pharmacological effects of THC, the psychoactive ingredient in marijuana.

The cannabinoids are shipped to the U.S. from places like China in kilogram-sized bricks that some could mistake for cocaine. The cannabinoid powder is dissolved in acetone, then sprayed on mostly inert plant materials such as marshmallow leaf and mullein leaf, which can then be smoked.

The result is a product that sort of looks like pot, but experts warn the effect on the human body can be far worse. In Way’s home state of Illinois, 164 medical emergencies, including a handful of deaths, are attributed to the consumption of contaminated Spice as of May 30.

While the defendant was from out of state, there is a local connection to the case. Way acted as a business consult to aid the transition of a Florida business called Zencense Incense Works resulting from a 2011 sale by owner Burton Ritchie, a serial entrepreneur and independent movie producer, to Tony Nottoli, who owned the Stuffed Pipe chain of smoke shops in Fresno, Visalia and Bakersfield.

A number of undercover Drug Enforcement Agency operations to purchase the synthetic opioids — sold under brand names including Bizarro, Posh, Sonic Zero and Orgazmo — were made at Stuffed Pipe locations in Fresno. In addition, a multiple-kilogram shipment of the active chemical in Spice, which goes by names including AM-2201 and XLR11, bound for Nottoli was seized by the Fresno County Sheriff’s Office.

The Sheriff’s Office ended up receiving more than $1.8 million in forfeited proceeds from this synthetic drug case, which were used to pay for a new $3.8 million helicopter.

Nottoli, who testified in Way’s trial, plead guilty in 2014 to one count of conspiracy as part of an agreement to cooperate with the U.S. Attorney’s Office. Nottoli generated more than $20 million in profits after purchasing the synthetic weed business, and went on to forfeit more than $6.6 million of the drug proceeds.

An employee of Nottoli, Natalie Middleton of Clovis, plead guilty and was sentenced to four months in prison as part of the conspiracy.

A key part of the trial was witness testimony from various expert chemists. That’s because these chemicals are fairly new to the scene. Once one is scheduled as a controlled substance by the DEA, a new formulation is developed in attempt to skirt the laws.

In fact, Nottoli’s business, which was later named ZenBio, kept an attorney on retainer and tested its product in a professional laboratory in an attempt to remain on the right side of the law.

As one DEA agent involved in the case reportedly groused, Jason Way, on whose trial I served on, was in the wrong place at the wrong time. He was friends with Ritchie, the seller of this business, as well as Nottoli — who very much hate each other — and acted as a consultant for business during the transition of owners. In his five months moonlighting for ZenBio, it sold $32 million worth of synthetic weed — 24 tons distributed to gas stations and head shops in 47 states.

In addition to a possible maximum 28-year prison sentence and $1.26 million in fines for the drug charges, Way is also facing the forfeiture of more than $589,000 he was paid in drug proceeds.

According to court officials, this was the sort of trial that comes along maybe once or twice a year to the Robert E. Coyle U.S. Courthouse in Fresno for its length and complexity. This was my first time serving as a juror in any courtroom. Here are some things I learned along the way:

Getting out of jury duty is pretty easy

There were a variety of excuses that potential jurors offered up to the judge to avoid service. Some seemed legit (in my opinion): summer school, medical conditions, nonrefundable vacation plans, etc. Then there were the hairdressers (two of them) who book so far in advance that they couldn’t possibly break those appointments and still make a living. There was also the guy who couldn’t possibly take three to four weeks off from work because it was a small business. When the judge didn’t excuse him for that, he tried another tact: He had family members fall into trouble with drugs, and he couldn’t possibly be impartial in a drug case. He got excused for that.

I’m not trying to minimize that or any excuse. At the same time, it was hard sitting in the jurors box hearing all of this and knowing full well I wasn’t going to avoid service. The excuses broke into two camps — hardship due to scheduling or work, and the people who couldn’t possibly render a rational decision without their biases getting in the way. Call me optimistic, but I don’t buy the second one. I think people can mostly make decisions based on evidence and not feelings. But who knows? The moral of the story is those folks went home and I served on a jury.

Lucky to have a good group of people

Considering every possible combination of personality and disposition, I feel like I lucked out in regards to the other jurors I served with. The jury was overwhelmingly male, with one regular juror who was a woman, and two woman alternates. Many were retired, and it seemed like all of us at least had a college degree. You end up spending a lot of time with jurors even before you get to deliberations. I’m on the quiet side, mostly listening to other conversations, but it was very pleasant to serve with that group.

This was a big case

Once the trial was over, I just had to read up on every aspect of it. It was a conspiracy case, with many moving parts and people involved. The science of the case was pretty interesting as well, with the jury deciding that a chemical was “substantially similar” to an illegal, listed chemical under the Federal Analogue Act. Even Neal Gorsuch — before he became Supreme Court Justice Neal Gorsuch — wrote an opinion in a similar case.

The world of designer drugs and how dealers attempt to skirt the laws and operate as legitimate businesses is pretty fascinating. The DEA has its work cut out for it trying to keep up with it all.

The law in action

U.S. District Judge Dale A. Drozd ran a tight courtroom, and made the juror experience as painless as possible.

Renowned Fresno defense attorney Roger Nuttall, along with Scott Quinlan, represented the defendant. It was a treat to see Nuttall in action. He made a very compelling case for his client, and pulled out all the stops in getting the jury to sympathize with him. Jason Way is an easy person to sympathize with — obviously smart, funny, engaging — a family man who is respected in his community.

Ultimately it was Assistant U.S. Attorney Karen Escobar who made the most convincing case.

At least from where I was sitting, it was very impressive to see these attorneys ply their trade. From all accounts it was a complicated case, with binders and binders of evidence and dozens of witnesses.

Jury service doesn’t feel that great at the end

The hardest experience was wrapping up deliberations and realizing that you are helping to convict someone of a crime. We did our jobs as best we could, considered the evidence and served our duty. But in the end, it didn’t feel like a victory or anything like that. Sitting in court, hearing the verdict read aloud was difficult.

I think good citizens generally stay out of each other’s business. It’s easy to judge others, but rarely does that judgment come with any real consequences. It was different in this case.

Overall, jury duty was a fascinating experience. Notwithstanding the difficult parts, it was fulfilling to be of service in that very unique way.

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