[Hie ihiiiilkeogen Law .[ReporterJj ^ \

Issue No. 7 ISSN 1074-8040 Summer 1995

Opium-using Hmong Shaman WinsReprieve From Deportation

NhiaBee Vue is a Laotian livingnear San Diego. He has livedin the United States for the

past fifteen years after being grantedpolitical asylum. Most of the 2,500Hmong who live in the San Diego areaconsider him a shaman and often relyon him for spiritual healing. Hmongshaman traditionally use opiumsolutions in their healing ceremonies.

In late 1986, Nhia Bee Vuewas convicted of unlawfully importingapproximately one pound of opium andpossessing opium with intent todistribute. He was sentenced to threeyears in prison and served 18 months.

In 1987, the INS issued anorder to show cause why Vue shouldnot be deported because of his drugconviction. In 1988, Vue was found inpossession of trace amounts of opium.He pled guilty to possession and wassentenced to 120 days in county jail.

In 1989, the immigrationjudge (D) found that Vue's criminalconvictions were sufficiently serious toorder him deported, concluding "inview of the inherent adverse effect thatopium canhave on individual membersof our society [Vue's convictionsconstituteda] perse particularly seriouscrime." Vue appealed the order to theUnited States Court of Appeals for theNinth Circuit

The Ninth Circuit, by anunpublished decision filed on May 23,1995, reversed the deportation orderand remanded the case for moreconsideration of the specialcircumstances mitigating againstdeporting Mr. Vue. It described Vueas:

...a Hmong medicine man orshaman in the Laotian

community. The evidencepresented at Vue's deportationhearing established that most ofthe2,500Hmongin the San Diegoarea where Vue resides will notrely on Western medicine whenthey become ill and will, instead,call ashaman toperform spiritualceremonies to cure their illnesses.Most of the Hmong communityknows Vue isashamanand wouldcall him if they became sick.Opium is traditionally used insuch spiritual ceremonies to treatstomach disorders and "badspirits" and was commonly grownby the Hmong mountain people.During these ceremonies, theshaman drinks the opium andthen blows it on the sick person.In his ceremonies as a shaman,Vue would use opium himselfbefore performing religiouschants to work "magic" and "healsickness." The Hmong do notuse opium for recreationalpurposes and look disfavorablyupon those who do. Vue did notgive opium to others and did notuse the drug unless performingthe shaman ceremonies.

The Ninth Circuit ruled thatthe U erred by failing to adequately

consider the uniquefacts ofVue's opiumconvictions. Commenting on the IPssuperficial analysis, the Ninth Circuitexplained:

In the present case, the U waspresented with and foundcredible many facts thatmitigated against givingoverriding weight to Vue'sconviction. For example,although the conviction was forpossession with intent todistribute, the U found credibleVue's claim that he used opiumonlyfor religious ceremonies anddid not distribute the drug toothers. The Ufurther recognizedthe traditional use of opiumamong Hmong shaman.Although traditional use inanother country does not whollyjustify use of the drug in thiscountry, the fact remains thatVue is nota garden variety opiumuser or dealer, a fact that wouldmitigate againstdeportation andprobable death upon his return.

At his hearing, Vuetestified that he now understandsthat using opium is illegal in theUnited States and has promisedto refrain from doing so in thefuture. Hehasalsofileda petition

In This Issue

Opium-Using Hmong Shaman Win* Reprieve.The Legal Statu* of Cttht cdalis(kh*t).

.59

.60Plant-Growing Equipment At Illegal Drag Paraphernalia? ,AIRFA Protects Peyote Use on ProbationFinal Rule With Respect to 2C-B (aJca, Nexus)The Silencing of Opposing Viewpoints.

.62

Prior Ingestion of LSD Does Not Defeat Possession Conrictioo .AT C C R e s p o n d s t o R q n i f T. „ . .

.64

.64

.65

.68

.68Red Pepper Mash a "Dangerous Weapon?" .69

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I s s u e N o . 7 >to reopen with the BIA in which he seeks to prove that he has not used opiumfor five years and is, therefore, rehabilitated.... These are the kind ofindividual particularized inquires required when balancing the equities in a...petition for relief [from deportation]. Amererote recital of the egregiousnature of drug offenses in general is insufficient

The Ninth Circuit went on to explain that Vue fought in the war inIndochina, allied with the United States. After the communist victory in 1975, hefled Laos and was granted political refugee status in the United States. In the viewof the Ninth Circuit, the U also failed to give full consideration to the hardship Vuewould face if deported. It was undisputed that Vue faced certain persecution andprobable execution if sent back to Laos.

As a result of the above considerations, the Ninth Circuit reversed the U*sdeportation order and sent the case back to the U with an order that he properlyconsider the factors mitigating against Vue's deportation.

Nhia Bee Vue's attorney on appeal to the Ninth Circuit was Robert A.Mautino, of San Diego. (Nhia Bee Vue v. INS, CA 93-70783, May 23,1995.)telrI

Summer 1995

Concerning the Legal Status of Catha cdulis (Khat)

The leaves of the plant Cathaedulis(aJca. khat, qat) are chewed byhundreds of thousands of people

around the world, particularly in Yemen,Somalia, Kenya, and a large expatriatecommunity in Great Britain. In theUnited States, its primary use appears tobe in landscaping. According to theDEA, the plant is unlawful to possess inthe United States because itendogenously produces two substances,cathinone and cathine, which are nowcontrolled substances in the USA.

Effective February 16, 1993,the DEA placed the substance cathinoneinto Schedule I of the ControlledSubstances Act Roughly five yearsearlier, the DEA placed the substancecathine into Schedule IV. Dependinguponitsmaturity,theplantCatfiat7tA/«can contain cathinone or cathine.AccordingtotheDEA,wheneverCfltViaed«//5 contains cathinone the plant itselfbecomes a Schedule I substance;however, the plant transforms into aSchedule IV substance when thecathinone naturally deteriorates intocathine. In the words of the DEA:

Cathinone is the majorpsychoactive component of theplant Catha edulis (khat). The

young leaves ofkhat are chewedforastimulanteffect Enactmentof this rule results in theplacement of any material whichcontains cathinone into ScheduleL Wnenkhatcontainscathinone,khat is a Schedule I substance.During either the maturation orthe decomposition of the plantmaterial, cathinone is convertedto cathine, a Schedule IVsubstance. In a previouslypublished final rule, theAdministrator stated that khatwill be subject to the sameschedule IV controls ascathine.... When khat does notcontain cathinone, but doescontain cathine, khat is aScheduler/substance. (58FR4316.)

Plants As 'Mixtures" Or "Containers"It is evident from the above

language that this is the old plants asmixtures/containers of controlledsubstances machination that the DEAalso uses to argue that mushrooms suchas Psilocybe cubensis are controlledsubstances because they endogenouslyproduce the controlled substancespsilocybin and psilocin. According tothe DEA, life forms fall within the

meaning of "container" or "mixture" asthose terms are used in the federalControlled Substances Act

The DEA's logic is ludicrous,as Jonathan Ott notes in the Premium tohis book Pharmacotheon. Under theDEA's logic, dogs and cats becomecontrolled substances because, likehumans and other mammals, theircerebrospinal fluid naturally includesthe controlled substance dimethyl-tryptemine (DMT). In other words, ifthe DEA believes its own argument, itsdrug-sniffing dogs are themselvescontrolled substances, making theirhandling agents technically inpossession of illegal drugs.

The DEA's position also flatlycontradicts at least one of its otherrulings. In an unpublished Final Orderissued by the DEA in a 1994 marijuanarescheduling case, the DEAdistinguished plants from the substances which they naturally embody.

In the marijuana reschedulingcase, the DEA distinguished tetrahydrocannabinol (THQ, the primarypsychoactive constituent of marijuana,from marijuana itself. Currently, (-)delta-9-trans-THC is classed as aSchedule II controlled substance,whereas marijuana, its original plantsource, has been placed in Schedule I.When the argument was made thatmarijuana should be rescheduled as aSchedule II substance because (-) delta-9-trans-THCisaScheduleII substance,the DEA rejected the argument bydistinguishing the scheduling ofsubstances fromthdrplant embodiment:

Under the CSA, the regulationof chemicals and the plantmaterial are distinct from eachother. The classification of delta9-THC has no bearing on theclassification of marijuana.Under the CSA, a proposedchange in the schedule of eithertetrahydrocannabinol or theplant material marijuanarequires the Attorney General toproceed independently.1

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Issue No. 7 Summer 1995The above position is obviously

inconsistent with the DEA'spronouncements with regard to Cathaedulis. Additionally, aside from thequestionable validity of the "mixture"and "container" argument, Ibelievethata very good argument can be made thatthe DEA failed to properly proceed withrespect to explicitly scheduling the plantCatha edulis in Schedule I.

Scheduling ErrorsThe scheduling path for

cathinone and Catha edulis washopscotch. In the October 30, 1987,Federal Register,1 the DEA announcedthat pursuant to USA obligations underthe 1971 United Nations Convention onPsychotropic Substances, it was placingcathinone in Schedule I and cathine inSchedule IV. That notice failed to makeany mention of the plant Catha edulis.

Six months later, on May 17,1988, the DEA published a Final Rulewith respect to cathine only; temporarilyplacing that substance in Schedule IVeffective June 16, 1988.1 Under aheading titled "SupplementaryInformation" the DEA noted:

In the October 30,1987, noticeof proposed rulemaking,comments were solicited frompersons interested in theproposed control action. DEAreceived commentsregardingtheproposed control of cathine [[+]-norpseudoephedrine] and itsimpact on the use of the plantknown as khat Following areview of the informationavailable on the chemicalconstituentsfoundinkhat, it hasbeen determined that khat willbe subject to the same ScheduleIV controls as cathine [[+]-norpseudoephedrine], one of thepsychoactive substances foundin khat Such a position isconsistent with the controlsimposed on many other plantscontaining control ledpsychoactive substances.4

This was the very first time theDEA mentioned the plant source ofcathine (and by common or colloquialname only). The notice also explicitlynoted that khat would be considered aSchedule IV substance by reason of itsproduction of cathine. (Again themixture or container argument) Thenotice was absent any mention of thesubstance cathinone.

Itwasnotuntil 1993, five yearslater, that cathinone again became thesubject of aDE A notice publishedin theFederal Register. On January 14,1993,a notice in the Federal Register

On the firstsix days, (rodcreated theHeavens andike Earth.On theSeventh day.He wasArrested.— Gaatais I. DEA V«Klon

announced that effective February 16,1993, cathinone would become aSchedule I substance. In this samenotice, the DEA claimed, for the firsttime, that Catha edulis would become aSchedule I substance when it containedcathinone.

Under federal law, there arestrict procedures for schedulingsubstances.5 One of the steps requiresthat scheduling of a substance bepreceded by publication of a notice inthe Federal Register inviting interestedpersons to submit comments respectingthe scheduling of that particularsubstance. With respect to cathinone,

the DEA did publish such a notice (OnOctober 30, 1987), but the notice wasabsent any information that would havealerted a reasonable person that thelegal status of the plant Catha eduliswas also at issue. Additionally, theover-five-year delay from the initialnotice to the FinalRule, seems to presentother issues with respect to laches andproper procedure.

Given the DEA's failure tomention the plant Catha edulis in itsnotice of proposed rulemakingconcerning cathine and cathinone, itappears to violate proper schedulingprocedure to suddenly announce, in aFinal Rule, that the plant is a ScheduleI substance whenever it containscathinone.'

Recent Happenings RelatedToCaffiaerfffffs

In an article titled The HighLife," Geographical magazine (January1995) reported that "no scientific studyhas shown any type ofqattobephysicallyaddictive or life-threatening." The samearticle noted:

Despite the lack of medicalevidence, several countries haveattempted to eradicate qat To alarge extent this action has beencarried out for religious reasons,because the Koran—while notspecifically mentioning qat(which was discovered after thesacred book oflslam was written)— bans any substance whichintoxicates. Some people alsoconsider that chewing the leaf isan unproductive and time-consuming activity and as suchdetrimental to the nationaleconomy. In 1972, YemeniPrime Minister Ali Ainiattempted to ban the leafbut thesole achievement of this movewas his fall from office. In theformer South Yemen, a morerealistic policy was adopted —no chewing on Fridays. Andduring the communist period inEthiopia, qat bushes were rooted

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up, while in Somalia, ex-president Said Barre banned itsuse altogether.

There has been at least oneverified khat-related arrest in the US A.In October, 1994, Atef al-Yafia, aJordanianlivmginBrooklyn, New York,was arrested after being undersurveillance by the New Jersey statepolice and the DEA. Thearrestoccurredafter agents discovered roughly 60pounds ofkhat leaves in aparcel shippedfromEngland to Mr. Yafia's post officeboxinNewark, New Jersey. The parcelwas reportedly marked "Christmascards"bmaUegedlycontainednumeroustwo-inch-thick bundles of sixteen-inch-Iong khat plants, wrapped in bananaleaves. He was released on $25,000 bailpending his trial.

By telephone withaDEAagentin New York, I learned that in late May,1995, Atefal-Yafia was granted pretrialintervention. The charges against himwill be dismissed ifhe obeys all laws forthe next year and attends a mandatorydrug education class.

In this same conversation, Ilearned that, other than the noticepublished in the Federal Register, theDEA has made no efforts to notifynurseries that the sale of live Cathaedulis plants is a federal crime.(According to the Sunset WesternGarden Book (my 1979 edition) Cathaedulis grows well in Zones 13,16-24,and is a valued evergreen shrub. Olderplants can grow to over twenty feet inheight and can occasionally be found inpublic parks in the above-mentionedzones.)

In a related development onMay 1, 1995, the United StatesSentencing Commission, submitted tothe Congress amendments to the federalsentencing guidelines. One suchamendment would add "khat" to theDrug Equivalency Table, used tocalculate a convicted drug defendant'sfederal sentence. Theamendmentwouldmake 1 gram ofkhat the equivalent of.01 gram of marijuana. Judges in a

federal khat case could then determine a khat defendant's sentence by looking up thesentence for the above-noted equivalent amount of marijuana. These amendmentswill likely take effect on November 1,1995.'

Notes' Final Order In the Matter of Petition of Carl Eric Olsen, dated May 19,1994, No. 93-1109.

52 FR 41736.» 53 FR 17459.

Id. at p. 17460.> Thepreconditionsforaddingasubstancetooneofthefivefederalschedulesare set forth at 21 U.S.C. sec. 811.

58 FR 4316.7 See, "Notice of submission to Congress of amendments to the sentencingguidelines: Amendments to the Sentencing Guidelines for United States Courts," 60FR25074,May 10,1995. iTELRl

When is Plant-growing EquipmentIllegal "Drug Paraphernalia?"

In TELR No. 3,1 worried aloud thatmushroom growing kits might fallwithin the federal law outlawing the

possession orsale of drug paraphernalia.While this fear has receded, it has beenreplaced by a concern that such aprosecution could conceivably bebrought in a state court under the modelanti-paraphernalia law that is in effectin most states. This uniform state lawwas dxaftedbytheDEA at the promptingof the White House, and is known as theModel Paraphernalia Act of 1979. TheeventswhichleduptotheModelActaredescribed in a publication from theDepartment of Justice:

The drugparaphernalia industryis thought to have reached itsheight during the late 1970's....Until 1977, the sale of drugparaphernalia was virtuallyunregulated by state Iawsor localordinances.... In 1977, the firstanti-paraphernalia parent group,Families in Action, was formedinDeKalb, Georgia. Thefbunderwas disturbed that "head shops"(that is, stores which soldprirnarilydrug-related products)and drug culture publications

were seeking to glamorize, teachthe use of, and provide theparaphernalia necessary to useillegal drugs.

It was argued that the legalsale of paraphernalia in "headshops" implicitly encourageddrugabuseamongyoungpeople.This implicit encouragement tobreak or disregard drug lawsbecame known as the "head shopmessage" — that drug abuse isboth socially and legallyaccep ted . C i t i ng theparaphernalia merchant'salliance with an illicit industry,Families in Action lobbied fortlieenactmemoflocal ordinancesbanning the sale of drugparaphernalia.

These efforts met withsuccess, and shortly thereaftersimilarparentandcitizenlobbieswere formed in California, NewJersey, and Florida... In 1979, atthe request of the White House,theDEAdrafted the Model DrugParaphernalia Act1

Some form of the state ModelAct has been adopted in the majority of

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(#»-* states. The Model Act generallyv describes drug paraphernalia as:

... all equipment products andmaterials of any kind which areused, intended for use, ordesigned for use, in planting,propagating, cultivating,growing, harvest ing,manufacturing, compounding,converting, producing,processing, preparing, testing,analyzing, packaging,repackaging, storing,containing, concealing,injecting, ingesting,inhaling, orotherwise introducing into thehuman body a controlledsubstance in violation of this Act[meaning the ControlledSubstances Act of this State].

Like the federal anti-paraphernalia law,' the state Model Actenumerates specific items which areincluded within the definition of drug

J*51 paraphernalia. Unlike the federal lawhowever, the state Model Act includes aspecific paragraph pertaining to plantgrowing kits. The paragraph expresslyincludes as drug paraphernalia:

(1) Kits used, intended for use,or designed for use in planting,propagating, cultivating,growing, or harvesting of anyspecies of plant which is acontrolled substance or fromwhicha controlled substance canbe derived.1

Under the Model Act it is acrime for any person to use, possesswith intent to use, deliver, ormanufacture with intent to deliver suchkits or other drug paraphernalia.

The Model Act also containsadvertising provisions making it a crimeto place an advertisement for drugparaphernalia:

rlt is unlawful for any person toplace in any newspaper,

magazine, handbill, or otherpublication any advertisementknowing or under circumstanceswhere one reasonably shouldknow, that the purpose of theadvertisement in whole or inpart, is to promote the sale ofobjects designed or intended foruse as drug paraphernalia. Anyperson who violates this sectionis guilty ofa crime...

It's impossible to tell what ismeant by the word kit, as that word isused in the Model Act. Standardgardening tools are notnormally speciesdependent in their use. A common pairof pruners will work just as well to cut amorning glory vine (the seeds of severalvarieties of which contain lysergic acidamide, a Schedule III controlledsubstance) as to cut a rose. If the plantkit section means what it says, agardnerwho uses his or her pruners to makecuttings of morning glory vines wouldtechnically be in possession of drugparaphernalia and guilty ofastate crime.

Similarly, considering that 5-MEO-DMT (arguably an analogue ofDMT) can be extracted from Phalarisgrass using a wheat grass juicer, is itillegal to advertise a wheat grass juicerin the pages of HighTimes, but legal todo so in Vegetarian Timesl Is it illegalfor a person to use, possess with intentto use, deliver, or manufacture, cactussoil if he or she is using it to grow cactiin the Trichocereus genus (many ofwhich contain mescaline, a Schedule Idrug)? For that matter, does possessionof gardening tools or a fluorescent lightalong with any one of the more than 250plant species known to endogenouslyproduce entheogenic controlledsubstances violate the Model Act?

Such questions bring to mind aquote from the United States SupremeCourt:

Vague laws offend severalimportant values. First becausewe assume that man is free tosteer between lawful and

unlawful conduct we insist thatlaws give the person of ordinaryintelligence a reasonableopportunity to know what isprohibited, so that he may actaccordingly. Vague laws maytrap the innocent by notproviding fair warning. Secondif arbitrary and discriminatoryenforcement is to be prevented,laws must provide explicitstandards for those who applymerrL A vaguehw impermissiblydelegates basic policy matters topolicemen, judges, and juries forresolution on an ad hoc andsubjective basis, with theattendant dangers of arbitraryand discriminatory application.

While the Model Act taken asa whole has routinely been upheldagainst vagueness attacks, a goodargument exists that at least theparagraph of the Model Act relating toplant cultivation kits is impermissiblyvague and consequently violates dueprocess by failing to clearly define justwhat exactly is prohibited. I am notaware of any published court opinion onthis precise issue.

The Model Act paragraphrelating to plant growing kits mightalso be susceptible to an attack on FirstAmendment grounds. One effect of theModel Act is to squelch the expressionof ideas that are contrary to the drugsare evil position of the government andgroups like Families in Action. It shouldbe recalled that FIA, itself, framed itsinitial complaint in terms of "the headshop message."

Many items are not inherentlydrug paraphernalia but rather maybecome such because of the context inwhich they are placed. The Model Acttherfore, really goes after context andcontext often involves expression.

To return to the exampleconcerning soil specifically formulatedfor growing cacti, the Model A a wouldseem to allow its sale if its packagingmakes no reference to psychoactive cacti

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which produce mescaline. However, ifthe exact same soil were packaged witha shamanic motif, listed Trichocereuscacti as benefiting from its formulation,or perhaps was called "Vision-mixture"it might well fall within the Model ActIn this example, the product itselfremains the same, but the element ofexpression changes, and becomes thesole difference between a legal productand contraband. The Model Act inother words, limits the content ofspeechand expression — something the FirstAmendment is said to protect

Lastly, with regard to my initialconcern that the federal anti-paraphernalia law might proscribe thesale of kits from which Psilocybemushrooms can be produced, the factthat the federal law appears to havepurposefully excluded the paragraphdefining plant kits as paraphernalia iscompelling evidence that Congress didnot intend the federal law to proscribethe sale of such kits - at least not asparaphernalia

Notes1 KM Healy, State and LocalExperience with Drug ParaphernaliaLaws, p. 4, U.S. Department of Justice,1988.

J 21 U.S.C. sec. 863.

3 States which enact the ModelAct are free to modify it In California,for instance, the paragraph pertainingto plant growing kits is identical to theModel Act except that the Californialaw replaces the phrase "intended foruse, or designed for use..." with"designedfor useormarfeterfforuse..."A subsequent section of the Californialaw defines "marketed for use" as"advertising, distributing, offering forsale, displaying for sale, or selling in amanner which promotes the use ofequipment products, or materials withcontrolled substances." (Cal. Health &Saf. Code sec. 11014.5.)

TELR

Federal Court Rules That AIRFA Protects Indian'sReligious Use of Peyote While on Federal Probation

On June 5, 1995, U.S. DistrictCourt Judge John C. Shabaz,ruled that a member of the

Native American Church cannot beprevented from participating in peyotemeetings while on federal probation.

Parmenton Decorah, 50, is amember oftheNative American Churchand Ho-Chunk tribal member. In 1994,he served a prison term for acceptingbribes related to an Indian gamblingoperation. As a standard condition ofhis probation he was prohibited fromusing controlled substances.

In May, 1995, his probationofficer learned that Mr. Decorah usespeyote as a sacrament during NACmeetings. The probation officer toldMr. Decorah that because peyote is acontrolled substance, he must refrainfrom using it while on probation. Theprobation officer was taken by surprisewhen Mr. Decorah showed him a copyof the recently enacted amendment tothe American Indian ReligiousFreedomAct (AIRFA), which guarantees Indiansthe right to use, possess or transportpeyote in connection with the practiceof a traditional Indian religiousceremony.

One section of the AIRFA, asamended, gives prison authoritiesdiscretion in permitting or prohibitingpossession of peyote by Indians who"are incarceratedwithinFederalor Stateprison facilities." Mr. Decorah arguedthat he was no longer incarcerated andthat his right to use peyote for religiouspurposes was, therefore, unequivocallyguaranteed by AIRFA.

The probationofficer requesteda court ruling "to clarify whetherParmenton Decorah should be allowedto use peyote while on Federalprobation".

On June 5,1995, Mr. Decorahandhisattorneys,RalphKalaland SteveMaize, appeared before Judge Shabaz.Inahearingwhichlasted approximately

ten minutes, Mr. Decorah's attorneyssimply presented the Judge with the textof the AIRFA and asked that Mr.Decorah be allowed to use peyote asguaranteed by that federal law. JudgeShabaz said two words: "So ordered."He also rejected suggestions that Mr.Decorah should be supervised whileattending NAC meetings.

I'm happy to say that TELRplayed a small part in this victory byconnecting Mr. Decorah's attorney,Steve Maize, with Jerry Patchen, counselforme Native American ChurchofNorthAmerica, who in turn connected Mr.Maize to James Botsford, the drafter ofthe AIRFA section pertaining to the useofpeyote by mran»rated Indians. Thatsection was specifically drafted to permitIndians on parole to worship in theNative American Church.

Thanks to Nicholas V. Cozzi,PhD., Department of Neurophysiologyat the University of Wisconsin MedicalSchool, for providing me with the firstinformation concerning Mr. Decorah'splight. PmA\

DEA Issues Final RulePlacing 2C-B (a.k.a.Nexus) In Schedule I

On June 2, 1995, the DEApublished its Final Rule in theFederal Register declaring that

effective that same day 2C-B (4-bromo-2,5-dimethoxyphenethylamine (4-bromo-2,5-DMPEA)) was added to thelist of Schedule I "hallucinogens." (60FR 28718,06/02/95.)

2C-B had been temporarilyplaced into Schedule I of the CSA onJanuary 6,1994, for aperiod of one year(59FR671). The temporary schedulingof 2C-B was subsequently extended forsix months until July 6, 1995 (59 FR65710).

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d ^ b

On December 20, 1994, in anoticeofproposedrulemaking publishedin the Federal Register (59 FR 65521)and after a review of relevant data, theDEA proposed to place 2C-B intoSchedule I.

By letter dated April 28,1995,DEA received the Assistant Secretaryfor Health's recommendation that 2C-BbeplacedintoSchedulel. No comments,objections, orrequests for hearings werereceived regarding the scheduling of2C-B.

According to the DEA, 2C-Bis structurally similar to the Schedule IphenylisoproDylamine hallucinogens, 4-methyl-2,5-dimethoxyamphetamine( D O M ) a n d 4 - b r o m o - 2 , 5 -dlmethoxyamphetarnine (DOB). LikeDOM and DOB, 2C-B displays highaffinity for central serotonin receptorsand is capable of substituting for DOMor DOB in drag discrimination studiesconducted in rats. According to theDEA, these data suggest that 2C-B is apsychoactive substance capable ofproducing effects similar, though notidentical, to DOMand DOB. Data fromhuman studies indicate that 2C-B isorally activeat0.l-0.2mg/kgproducingan intoxication with considerableeuphoria and sensory enhancementwhich lasts for 6 to 8 hours. Accordingto the DEA, higher doses have beenreported to produce intense andfrightening hallucinations.

TheDEAfirstencountered2C-B in 1979. Since that time, severalexhibits of 2C-B have been analyzed byfederal andstateforensic laboratories inArizona, California, Colorado, Georgia,Illinois, Iowa, Kentucky, Oregon,Pennsylvania and Texas.

Clandestine laboratoriesproducing 2C-B were seized inCalifornia in 1986, and 1994, and inArizona in 1992. 2C-B has beenmisrepresented as 3,4-methylene-aUoxymethamphetamine (MDMA) andhas been sold on sugar cubes as LSD.2C-B has been promoted as anaphrodisiac and distributed under theproduct name ofNexus. DEA has seized

several thousand dosage units of this productBased on the information gathered and reviewed by DEA and upon the

scientific and medical evaluation and recommendation of the Assistant Secretary forHealth, the Deputy Administrator for the DEA, pursuant to the provisions of 21U.S.C. 811 (a) and (b), issued findings that:

(1) 2C-B has a high potential for abuse.(2) 2C-B has no currently accepted medical use in treatment in the UnitedStates.(3) There is a lack of accepted safety for use of 2C-B under medicalsupervision

These findings are consistent with the placement of 2C-B into Schedule Iof the CSA. As a result of this Final Rule, 21 CFR Section 1308.11 is amended toadd:

Sec. 1308.11 — Schedule I.(d) (3) 4-Bromo-2,5Kiimethoxyphenei±ylnmine — 7392

Some trade or other names: 2-(4-bromo-2,5-dimethoxyphenyl)-l-aminoethane; alpha-desmethyl DOB; 2C-B, Nexus.

For more information about 2C-B, see Dr. Alexander Shulgin's bookPihkal. (Transform Press. Box 13675, Berkeley, CA 94701.) Dr. Shulgin is thefather of 2C-B. I TELR I

- Silencing Opposing Viewpoints -Representative Solomon Goes After

Dissenters in the War on Drugs

Representative Gerald B.H.Solomon (R) New York - 22ndDistrict Of Glens Falls was

elected to the House of Representativesin 1978, and is now in his ninth term.Prior to being appointed to the RulesCommittee by Newt Gingrich, be sat onmeForeignAl%irsC^mimttee,apositionhe used as a forum for his anti-Communist rhetoric.

In January, 1991, the day afterPresident George Bush launched theground offensive against Iraq, Solomoncalled for a constitutional amendment toban flag burning, stating "What wecannot be proud of is the unshaven,shaggy-haired, drug culture, poorexcuses for Americans, wearing theirtiny round wire-rim glasses, a protester'ssymbol of the blame-America-firstcrowd, out in front of the White Houseburning the American flag."

In recent years, Solomon'slegislative achievements have been

focused on penalizing drug users. Hewas instrumental in persuadingCongress to reduce federal highway aidto states that do not suspend the driver'slicenses of those convicted of a drugoffense whether or not an automobilewas involved.

On Thursday, March 2,1995,Solomondeliveredaspeech in the Housein which he launched a McCarthyesqueattack on groups and individualsexpressing workable alternatives to thewar on drugs. "The only way to combatthe increase of druguse in this country,"said Solomon, "is to stand firm againstrecent attempts by prodrug groups tomute public awareness. These groupsattempt to disguise the dangers of drugabuse and cor equentiyjeopardize futuregenerations," He went on to say:

In the mid to late 1970's duringthe Carter administration, drugpolicy visibly softened. Several

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Issue No. 7 Summer 1995

states decriminalized marijuana, and in fact Alaskalegalized marijuana. Drug policy "specialists" in theirinfinite wisdom supported the flawed concept called"responsible use" of drugs as a way that users couldmaintain personal use of drugs and avoid the ravagesof addiction and physical problems.

Permissive drug policy originated withorganizations like the National Organization for theReform of Marijuana Laws. President Carter's drugpolicy advisor Peter Bourne, as well as others likeArnold Trebach, Mathea Falco, Peter Reuter, MarkKleiman helped to press for the lenient policy.

Interestingly, duringthat time theuseofmarijuanaandotlierdragsdrasticaUyincreased. Usealso increasedin adolescents despite the met that drugs never becomelegal or decriminalized for that age group. The use ofmarijuana among high school students in Oregonduring decriminalization was double that ofthe nationalaverage. National averages of marijuana use amonghigh school seniors increased to 50% of seniors havingused in the previous year, and 10.7% used daily.

Ultimately, parents began to object to the rampantuseofdrugs, espedallymarijuana, amongmekchildren.In the early 1980's the "parents"' anti-drug movementbegan. Because of the drastic failure of lenient drugpolicies, steady pressure was exerted at national andIocallevelsforrestrictive drugpolicies. Ahuge nationalwave of high quality research, grassroots preventionorganizations, and tightening of drug laws began.

Predictably.the useofdrugs among"recreational"users dropped. High school seniors use of marijuanadropped to 23% of seniors using within the last yearand 2% using on a daily basis. The use among hardaddicts did not drop.

Strangely the cry has been sounded by some thatthe drug war did not work. That outcry, however, wasalmost exclusively being sounded by individuals whofavored legalization or decriminalization back in the1970's. The same individuals who called for softpolicy in the earlier era are calling for the new harmreduction policy today. Hidden within such policy isthe intent to gain decriminalization of drugs.

After claiming that Holland's experiment withdecriminalization has been a failure, Solomon returned hisfocus to groups in the US. that present alternatives to the drugwar:

The major difference between today and the 1970's isthat the prolegalization effort is more organized andbetter funded. The millionaire Richard Dennis fromChicago has given millions to the drug legalizationeffort Billionaire George Soros has given $6 million to

the Drug Policy Foundation to help seek legalization ofdrugs. He created the Open Society Fund which in turnfunds Mathea Falco's Drug Strategies organization.Steadily, these groups put a happy and acceptable faceon the idea of drug legalization or decriminalization.Their public relation campaign has softened publicattitudes. Moves such as full page ads in nationalnewspapers suggesting alternatives to drug policy areexamples. Organized efforts at such ideas as hemp asa fiber alternative, medical marijuana, needleexchanges, therapeutic LSD, and others pervade themedia. The Internet is bristling with pro-drug talkgroups discussing recent drug experiences and howand where to obtain drugs.

In the face of these facts, the holdovers from the70's drug policy makers are still asking for lenientdrug laws. A substantial number of today's addictsstarted their use under the lenient policies of the1970's. We have had our experience withdecriminalization, and it is time that we recognize itand put that concept to bed.

On Thursday, April 6,1995, Solomonreturnedtothefloor with renewed rhetoric:

Mr. Speaker, the time has come to refocus our sites onthe number one problem in this country, drugs...Fortunately, the public has more sense than to believethe nonsense being sent out by the Cato Institute andotherpro-legalization organizations. They wouldhaveus believe that since we have failed to make progress,as measured by them, it is time to give up the fight Forthe sake of our childrenand our grandchildren we mustnever, never give up.

As the war on drags goes on, it may be appropriateto remember the words of one of our greatest Presidentsas he reassured the American people: "...the crisis weare facing today...requires our best effort and ourwillingness to believe in ourselves to believe in ourcapacity to perform great deeds, to believe that togetherwith God's help we can and will resolve the problemswhich now confront us. After all, why shouldn't webelieve that? We are Americans."-President Ronald

/*^\

As Americans we must win and we will win thewar on drugs. As a Marine I can assure you that youdon't win a fight battle or a war by giving up.

The most serious problem with legalization isthat it will hurt those communities who can least afforda signfficantinCTeasemthe number of addicts, violenceand crime. But do the libertarian elites at the CatoInstitute or the wealthy Hollywood cocaine users inHollywood really care about this community? Don't

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Issue No. 7 Summer 1995kid yourself, they couldn't care less about the damagelegalization would do to the inner-city poor so long asit helps them justify their self-centered and self-indulgent lifestyles.

They know legalization would be lucky to getmore than three votes in the House or even one in theother body. Legalization was jettisoned with Joyclynand is not coming back. However, it is useful if yourreal purpose is to influence young people to try and usedrugs.

After calling for expanded drag testing in the privatesector, and for denying student assistance and summer jobs topersons convicted of any drug offense, he launched a directattack on organizations that offer alternatives to the drug war.In an outrageous attempt to silence viewpoints contrary to his,he announced:

Today I am introducing legislation to end the taxexempt status of organizations which promote oradvocate thelegalizationof drugs. I would ask aU ofmycolleagues to join in sponsoring this bill. I will offerthis as an amendment to the first appropriate vehicle.

TheAmericanfamfly, tryingto raisetheir childrenin a drug free environment is under attack byorganizations, whichactually promote the use ofillegaldrugs. To make matters worse, these organizationsreceive favorable treatment under our laws. This isdead wrong and our tax code must be immediatelycorrected to end this travesty.

The pro-legalization message being sent out bythese organizations is providing results. More kids areinvolved with drugs than anytime in the past 20 years.Consequently, the number of addicts on our streets willrise dramatically within a few more years. Theseorganizations are not charitable organizations. Justtheopposite. Theyare organizations which deliberatelydeceive the public and the media by using legitimatesounding names such as the Drug Policy Foundation,orthe Organizationfor ResponsibleDrug Information,Yet they are financed and run by people who advocateor condone the use of illegal drugs.

Mr. Speaker, I would also point out that theseorganizations have knowingly and willfully violatedour lawsby actively lobbying Congress. Officials fromthe so-called Organization for Responsible DrugInformation has contacted my office to state theiropposition to my drag prevention legislation and Ireceived a flyer just today from the Cato Instituteadvocating drug legalization Who is contributing to<^to?These organizations and meindtviduals involvedwith them are violating United States Tax Code. Theyneed to be investigate and tiieir contributors shouldbe

required to pay taxes on past contributions.The time has come to expose some of these more

sinister organizations and the seedy individualsinvolved with them for what they really are —organizatiorisengaged in immoral and unethical activityoperating in the gray area of the law. They are sendinga damaging message to the young people in thiscountry and our tax law needs to more accuratelyreflect American people's tolerance level for this typeof activity. The IRS has already threatened to revokeNORML's tax-exempt status for illegal activity. Thisis a step in the right direction.

What pro-legalization organizations refuse todisclose about the disastrous human consequenceswhich have occurred in the country where they havealready tested legalization tells you a lot about theirtrue intentions. You will never hear the truth about thefailure of drag legalization in the Netherlands fromDrug Policy Foundation...

On the date of his speech, Solomon introduced HR1453 which would amend the federal tax code to deny taxexempt status to any organization "if any portion of theactivities of such organization consists of promoting thelegalization of any controlled substance." I have long arguedthat the term "legalization" means very different things todifferent people, and' hence is vague to the point of beingincomprehensible absent specific details of the plan. What isnot unclear, however, is Solomon's intent to censure thosewith opposing viewpoints.

Solomon's attempts to silence voices in opposition tothe war on drugs, evidences the distorted thinking underlyingthat "war." Solving the drug problem will require morethinking not less. The government should be encouraging thefree exchange of ideas among people who are sincerely tryingto solve the problem. Beyond placing his thumbs in his earsto block out other's ideas, Solomon's proposed legislationseeks to place a gag in the mouths of dissenters. "Those whobegin coercive elimination of dissent" said Justice FelixFrankfurter "soon find themselves exterminating dissenters.Ccnipulsoiyunfficationofopinion achieves only the unanimityof the graveyard."

At bottom, Solomon's legislation seeks to repress thedissemination of different ideas on an issue of nationalimportance. It is reminiscent of book burning and fascism.

The drug war needs rethinking, beginning with theidea that some drugs may have legitimate nonmedical uses.Entheogens, should be recognized for their milenia-oldassociation with religious or spiritual states of consciousness.Solomon'stegislationisthelatestattemrjttore^on entheogens and their potential value on both the personaland social scale. Presumably, if bis bill passes, groups like,MAPS, the Heffter Research Institute, the Drug Policy

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Issue No. 7 Summer 1995

Foundation, the Albert HofmannFoundation, the Lindesmith Center,CSP, and others would be denied taxexempt status and stand to lose much oftheir financial base. These are the voicesof dissent offering rational alternativesto wholesale war. They should besupported, not silenced.

Without dissent there is noantidote to delusion. 1 TELR I

LSD Possession ConvictionStands Despite Defendant'sIngestion of Drug Prior toHis Arrest.

On May 8,1995, the CaliforniaSupreme Court issued anopinion upholding the LSD

possession conviction of DouglasPalaschak despite the fact that thegovernment was unable to present anyevidence that Mr. Palaschak was inpossession of LSD at the time of hisarrest This decision by the highestcourt in California, establishes adangerous precedent that could lead toa jump in drug prosecutions andconvictions.

There was considerableevidence that Mr. Palaschak had taken

some LSD a few hours before his arrestand that he was under the influence ofLSD atthetimeof his arrest California,however, while outlawing "possession"of LSD does not outlaw use of LSD.(Penal Code section 647 (f) comes theclosest to outlawing the use of LSD andother entheogens, but conviction underthat statute requii proofthattheperson:(1) was in a public place, and (2) thatthey were a danger to themselves orothers.) In essence, the CaliforniaSupreme Court reasoned that theevidence showing Mr. Palaschak'singestion of LSD earlier that day(including his own statements to thateffect), was sufficient circumstantialevidence to supportajury verdict that hepossessed LSD that same day. Thecourt explained:

If, as in the present case, direct orcircumstantial evidenceestablishes that the defendantpossessed an illegal drug duringthe period of the applicablestatute of limitations, nocompelling reason appears whythat evidence should not besufficient to sustain a possessionconviction. Certainly the drug

possession statutes contain nosuch requirement. Theadditional, fortuitous, fact thatthe defendant has consumed oringested the drug likewise shouldnot preclude a finding of hisunlawful possession of it.

The court's ruling raisesnumerous questions in my mind. Forexample, is a defendant's statement thathe previously used or possessed anillegal entheogen (within the statute oflimitations for prosecution) sufficientfor conviction? (It never has been, andI'd be shocked if this case could beextended that far.) Could a positivedrug testbe sufficient by itself, to sustaina possession conviction? (Most statecourtshavesaid"no.") Withdrugtestingbecoming more and more prevalentand with testing becoming moreadvanced every day, these questionswill likely be answered by more courtsin the near future. In the next issue ofTELR, I hope to give more details aboutthe Palaschak case, and report on howotherjurisdictionshavedealtwith issuesof use, possession and drug testing.(People v. Palaschak (May 8,1995, 95D.A.R.5979.) \mF\

ATCC Responds to Rumors that the DEA Ordered it toDestroy all Psilocybe Mushroom Cultures

Last Fall, a rumor begancirculating that the AmericanType Culture Collection

(ATCC) destroyed aU of its PsilocybemushioomcultirresonorderoftheDEA.Since that time I have been attemptingto get confirmation of whether the DEAactually made such an order. Letters tothe DEA and ATCC went unanswered.

Just prior to publishing thisissue of TELR, I received severalinquires from people concerned thai theDEAhad indeed moved againstATCC.Prompted by their questions, I againwrote ATCC asking if they acted

pursuant to a DEA order to destroy.On June 27,1995,1 received a

facsimiletraiisrnissionfromATCC. Theletter was written by Frank P. Simione,the Vice President for Operations atATCC. In his letter, Mr. Simioneadamantly denies that ATCC destroyedany cultures on order of the DEA,writing:

... I am not aware of any instancemATCC'sbistorywhen cultureswere destroyed by regulatorymandate, andean assureyou thatno mushroom cultures were

destroyed by order of the DragEnforcement Administration.

I have no reason to believe thatMr. Simione's response is anything lessthan 100 percent trathful. ATCC is anindependent nonprofit organization,highly respected in its field. It is not abranch of the government nor can I seehow ATCC would gain by falselydenying that it acted pursuant to a DEAorder. Consequently, it is my opinionthat the DEA did not order ATCC todestroy its Psilocybe cultures.I TELR I

THE ENTHEOGEN LAV REPORTER post office box 73481 davis California 95617-3481 Page 68

Issue No. 7

Sauce Makes Him Armed, DangerousSummer 1995

•LEBANON, NJL — The suspectwas armed—with a bottle of Tabascosauce that was considered dangerous.

Michael Towne, a 20-year-old cookat Denny's, has pleaded innocent toassaulting two Vermont state troopersby spiking .their breakfast eggs withTabasco.

Troopers Timothy Clouatre and Michael Manning, who had crossed.intoNew Hampshire for breakfast on Feb.7, said the eggs burned their mouthsand upset one officer's stomach.

"We've got enough trouble without

people screwing around with ourfood," said Lebanon police Lt KenLary.

But Towne said he apologized afterthe troopers complained and the waitress offered them a free meaL He saidhe told the troopers he did not spicetheir eggs intentionally.

"One guy said it was spicy; the othersaid it was flavorful," he said.

Towne could be fined $2,000 andsentenced to a year in jail on eachcount Hell be on the hot seat June 6,when his trial is scheduled to begin.

The above article is reprinted from the San Francisco Daily Journal.

|P>

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Statement of PurposeSince time immemorial, humankind has made use of entheogenic substances as powerful tools for achieving spiritual insight andunderstanding. In the twthtieth century, however, many of these most powerful of religious and epistemological tools were declared illegalin the United States and their users decreed criminals. The Shaman has been outlawed. It is the purpose of this newsletter to provide thelatest information and commentary on the intersection of entheogenic substances and the law.How To Contact The Entheogen Law ReporterPlease address all correspondence to Richard Glen Boire, Esq., The Entheogen Law Reporter, Post Office Box 73481, Davis, California,95617-3481. Immediate contact can be made via facsimile transmission to 916-753-9662, or via internet e-mail to TELR@aoI.com.

Subscription InformationThe Entheogen Law Reporter is published seasonally. A one year subscription is twenty-five dollars in the USA, thirty dollars to all otherdestinations. When subscribing, please make your check or money order payable to Richard Glen Boire.Copyright & LicenseCopyright 1995 The Entheogen Law Reporter. All articles appearing in TELR are copyrighted. However, TELR, freely licenses and encouragessubscribers to photocopy, reprint, and digitize the articles contained in TELR and freely share them, provided that TELR is given credit andthe newsletter's contact points are included. Distributing the information in TELR for profit, without prior consent, will be considered acopyright infringement and/or a breach of this licensing agreementDisclaimerThe Entheogen Law Reporter is not engaged in rendering legal or other professional advice, and assumes no responsibility for the statementsand opinions advanced by any of its writers or contributors. The information herein is subject to change without notice, and is not intendedto be, nor should it be considered, a substitute for individualized legal advice rendered by a competent attorney. If legal service or other expertassistance is required, the advice of a competent attorney or other professional should be obtained.

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