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Offlineedgar1337
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True Legal status of RESEARCH CHEMICALS and a Collection of Legal Prosecutions related to RC's
    #26982681 - 10/13/20 12:51 AM (3 years, 3 months ago)

This guide attempts to clearly explain the legality of Research Chemicals - not based on bluelight threads or archived reddit comments, but based on prosecutions, legal precedent, and other material evidence.


From Cornell Law (emphasis mine):


[[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.

(b) Determination In determining whether a controlled substance analogue was intended for human consumption under subsection (a), the following factors may be considered, along with any other relevant factors: (1) The marketing, advertising, and labeling of the substance*. (2) The known* efficacy or usefulness of the substance for the marketed, advertised, or labeled purpose. (3) The difference between the price at which the substance is sold and the price at which the substance it is purported to be or advertised as is normally sold. (4) The diversion of the substance from legitimate channels and the clandestine importation*,* manufacture, or distribution of the substance. (5) Whether the defendant knew or should have known the substance was intended to be consumed by injection, inhalation, ingestion, or any other immediate means. (6) Any controlled substance analogue that is manufactured, formulated, sold, distributed, or marketed with the intent to avoid the provisions of existing drug laws*.*

(c) Limitation

For purposes of this section, evidence that a substance was not marketed, advertised, or labeled for human consumption, by itself, shall not be sufficient to establish that the substance was not intended for human consumption.]]



The actual law is more stipulative than the typical "not for human consumption" line. We see from legal code that the FAA was designed to be very broad and nebulous, likely to give prosecutors more power to successfully charge criminal complaints. I see a lot of people try and present this like it is a cut and dry issue. But that suggests a fundamental misunderstanding of the law, and how legal proceedings actually work.

Considering it is impossible to explicitly catalogue every possible crime and have a related penal code, much of the law is subjective and up to interpretation. But there is also legal precedent that people may not understand or know the (complex) laws, therefore they are "unconstitutionally vague."

Every case is different. It falls upon both the prosecutor and the defense to each make their arguments, and suggest a more/less favorable interpretation of the law to the jury.

This debunks the fallacy of specificity - the idea that because there isn't a specific legal code for a specific crime, then it is legal. This is not true. Likewise, because a substance isn't explicitly scheduled doesn't mean it is legal. But again, its complicated.

The Federal Government specifically designed the (FAA) Federal Analogue Act to deal with the issue of specificity. It is broad, sweeping, and its nomenclature is obscure. It is intentionally designed to be all-encompassing, to allow prosecutors great flexibility.





United States vs. Forbes (non-binding legal precedent was set)


[[“Because the definition of 'analogue' as applied here provides neither fair warning nor effective safeguards against arbitrary enforcement, it is void for vagueness.”[1]

The common law principle that the people should have the right to know what the law is, means that the wording of laws should be sufficiently clear and precise that it is possible to give a definitive answer as to whether a particular course of action is legal or illegal. However, despite this ruling the Federal Analogue Act was not revised, and instead AET was specifically scheduled to avoid any future discrepancies.

As a district court decision, this case is no binding precedent. ]]



A binding precedent is a directive for how courts are to handle similar judgements in the future. This case did not set a binding precedent. It did set a sort of unofficial precedent in that there were no changes or ameliorations to the FAA, but the defense did successfully contest the 'analogue' nomenclature.

If the defense was able to void the operational definition of 'analogue', then as is the way of precedents, all subsequent contests will be easier to demonstrate. This case opened the door.





United States vs Washam (binding precedent set in 8th circuit court of appeals)


[[It was also raised in the case of Washam that the Federal Analogue Act was unconstitutionally vague, but in this case the court rejected this argument on the grounds that the defendant's actions in concealing her activities and lying to DEA agents showed that she knew her actions were illegal, and furthermore that “…a person of common intelligence has sufficient notice under the statute that 1,4-Butanediol is a controlled substance analogue.” The court in Washam construed the Analogue Act to require parts A(i) and either A(ii) or A(iii), and concluded the Act was constitutionally permissible upon this construction. ]]


In this case the defense raised the same argument; FAA nomenclature is nebulous and vulnerable to vastly different subjective interpretations and is thus unconstitutional. However the defendant displayed activity considered criminal: attempts to obfuscate her activities.

So this raises an interesting concept. In this case, the defendant's behavior; lies, obfuscation, and concealing her behavior - contributed to her conviction. The court decided her behavior was indicative of criminality because if she didn't know it wasn't legal, she wouldn't have hidden it.

This introduces a catch-22, damned if you do damned if you don't situation. If you conceal or sublimate your own activity with RC's, it can be demonstrated to a court that you were consciously breaking the law. If you admit your activity (consuming) with RC's, you incriminate yourself by admitting the substance was intended for human consumption violating the FAA.

Most lawyers will tell you not to incriminate yourself, however. And its best not to make decisions based on the ruling in one obscure case. The law is complex, variable, and subjective.





[[As a result of Washam, the Federal Analogue Act has been upheld (at least for the states and territories comprising the eighth judicial circuit) and can be considered valid at the present time. ]]



So this sets an operational precedent for the eighth judicial circuit (court of appeals.) They have now established that sublimation and concealment of RC activity is sufficient to void any contests regarding "unconstitutionally vague" laws and citizens right to understand the law (not related to the "Right to Know" laws which pertain to non-psychoactive chemical exposure in the workplace.)

All this means is that you can not take this specific argument in court. If a lawyer were to argue that citizens have a right to know laws and that the FAA is unconstitutionally vague, it will get slapped down and the judge would be referenced precedential cases. Sadly, this is the primary vector that the defense would select. It is the only chink in the steel-plated armor of the Federal Analogue Act.






Operation Web Tryp


This was a DEA investigation into phenethylamines and tryptamine analogues (RC's) which resulted in the arrests of 10 individuals. The stated goal of the operation was to prosecute distributors.

[[Although these chemicals were not yet scheduled, a long shadow was cast on their legality by the 1986 Federal Analog Act. This Act and the United States v. Forbes Colorado federal district court case stipulated that the burden of proof, in regards for the intention for human consumption, was on the government if any prosecution under the Federal Analog Act was to occur. Additionally, legal ambiguities regarding the legality of certain analogs of scheduled substances had been established in the aforementioned court case (In particular, the similarities of AET and DMT were debated). ]]



This is important in that the burden of proof falls upon the state, or the prosecutors. The AET Forbes precedent discussed earlier was referenced by the defense.

[[In December 2004, using credit card information provided by the DEA, British police arrested 22 UK residents who had purchased 2C-I through the seized web sites (Operation Ismene).[1][4] No one was jailed and most were released without charge.[1] No customers in the United States were known to be arrested.[3]]


Despite having tracked down nearly two-dozen drug users, the state (UK) refused to press charges against any of them. Not much to say, it could have been for any amount of reasons, not least of which being that the drugs were probably all gone by the time they traced the specific purchase to an individual, and as they say possession is 9/10 of the law.

US and UK law is also very different.





What does this mean for you?


Despite the US vs Washam ruling that concealment was indicative of criminal activity, the US vs Forbes case has precedent regarding burden of proof. The state must prove an individual had the intent to consume a substance. Although as detailed in the FAA, there are numerous ways the prosecution can demonstrate that the substance is generally meant for consumption - irregardless of your own individual desires or actions.

If you purchase research chemicals from a website that states it is for human consumption, or if that website/vendor subverts normal channels for importation (if they lie on their customs declaration CN22 form for international mail), or if the substance has efficacy similar to its scheduled analogue, then they can demonstrate to the court it is a substance meant for consumption - even if you didn't consume it.

However, I couldn't find legal cases involving every-day RC users.



All existing Federal Analogue Act prosecutions have been against either producers or distributors.


Although it is difficult to say for certain, RC-related arrests will only be prosecuted under the Federal Analogue Acts if the crime falls under the Federal Governments purview. If a cop pulls you over with 6-APB, its not a federal crime, so the FAA is never invoked. In regards to distribution, which entails money and products crossing state lines, it is a federal crime. The Fed could argue that purchasing RC's that crosses state/international lines is Federal, and mail-related crimes are also typically federal territory. But it is unlikely the Fed would pull strings to take on a low-level drug crime.

This is likely why we see so few FAA cases.





Legal Gray Zone


It truly is legally gray. It is complex, nuanced, and subject to the variability of US law and courts.

But this nebulous legal status also serves as a bulwark. Prosecuting users for possession, under the influence, or related RC crimes would be difficult. However, some prosecutors might not expect defendants to take the case to trial, some might assume the individual would buckle under pressure and plea out - in this case the legal gray zone won't help you. It doesn't matter how hard it is to sell to a jury if the prosecutor doesn't believe you'll take it that far.

Therefore, you should not consider legal gray zones to be safe by way of difficulty proving criminality/successfully convicting.

The vast majority of drug-related charges are plea deals with guilt admissions and reduced sentences.

Some US states have deferred-entry-of-judgement penal code that does not require admission of guilt, does not convict on charges, but defendants are required to go through treatment options like penal code 1000: a pretrial diversion.

Qualitative opinion: If you are arrested for possession, under the influence, or any related RC crime - you need a lawyer. Not a public defender - for various reasons. With a paid lawyer, they can inform the prosecutors they intend to take the case to trial (whether or not they do.)





This is bluffing - and its a big part of plea deals between lawyers and prosecutors. Prosecutors and Lawyers will use misdirection and even lies. Its typically a back and forth about how far they will take the case. A lawyer will ask the court for more time to find chemists and scientists to testify. They often have no intention of doing so - but it introduces a degree of doubt for the prosecutors.

This dirty back-and-forth is common in drug-related charges. It is the one dimension of criminality that is predicated on plea deals and guilt-admissions that never make it to trial. It is also the most likely of criminal charges to be dropped by the DA, save for domestic misdemeanors (where the state, not an individual, is pressing charges in a family matter therefore no material witness) and public civility complaints.

At times the District Attorney will drop all charges. They will drop charges for multiple reasons, often because the prosecutors office has limited resources and full case loads, and pursuing a case to trial that is not a cut-and-dry sure thing is simply not worth the effort. Don't bet on this though. Its not all down to resources.

Due to the nature of office, and powerful positions in general, personality plays a role as well. DA's often have their own agendas (tough on crime/drugs/etc). It is an elected (not appointed) office which means they were voted for and had a political platform.

Lawyer fees vary, but if taken to trial it will cost substantially more. And not just for you, but the prosecutors as well, who will need their own experts and chemists (which costs money and manpower) to speak in court.




(The following is *qualitative*, * subjective* and not based on material evidence. You can choose to disregard it. It is merely a collection of personal, common-sense logic pertaining to the criminal system - based on qualitative experience - do not mistake it for legal advise, it is not.)*


If I was arrested for arrested for a drug crime, I would:


   
  • Hire a lawyer - not a public defender. A public defender in the comments found this section insulting - that is not my intention. Based on how the system works, you are far less likely to receive comprehensive efforts in your case by public defenders. It doesn't mean they are "bad" or incompetent.

  •     Bail out of jail - you do not want the judge to see you bound in cuffs, wearing an ill-fitted orange jumpsuit, and being escorted by armed guards for your arraignment. By bailing out, you can take the time to clean up, wear respectful attire, and appear in court like a good, law-abiding citizen swept up in some bad decisions.

  •     Tell the lawyer you intend to take it to trial (even if you wont/don't). If they are any good, they will know what to do. But to be safe, ask them to tell the prosecutors in pre-trial discussions that you intend to bring in experts to testify. Good lawyers typically have a relationship/rapport with county officials and prosecutors.

  •     After the bluffing and back-and-forths, your lawyer will negotiate a plea deal. This typically means you plea guilty (admission of guilt) and get a reduced sentence - or more often they will drop some charges. Prosecutors account for this even before you are arrested - this is why Police typically find ways to bring forth numerous charges for the same crime (possession AND under the influence AND paraphernalia) - to assist prosecutors in getting the most charges to stick. They will offer to drop a completely unnecessary auxiliary crime (Texas P.C.49 on top of Sec. 483.041 - which is possession and under the influence) and charge you with the only crime they ever intended on sticking.

  •     You can then choose to accept the plea (or not if your state has deferred judgement laws), you can expect no jail time, a criminal record, and mandatory drug-education courses. OR...

  •     You can tell your lawyer to take the case to trial, and there will be no small hubub about it. Both parties will loudly proclaim how invested they are in the case, how they will enlist this or that professional to testify, use this or that material evidence, etc. More legal theatrics. There is a chance the DA will toss the case to avoid trial, but its a game of chicken, waiting to the last moment and jumping out of the way - therefore I won't advocate this decision. There is no way to predict how humans will behave.


--------------------

"Mistakes are, after all, the foundations of truth, and if a man does not know what a thing is, it is at least an increase in knowledge if he knows what it is not."

-Carl Jung


"The current state of knowledge is a moment in history, changing just as rapidly as the state of knowledge in the past has ever changed and, in many instances, more rapidly."
-Jean Piaget


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OfflineBrian Jones
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Re: True Legal status of RESEARCH CHEMICALS and a Collection of Legal Prosecutions related to RC's [Re: edgar1337]
    #26984664 - 10/14/20 08:12 AM (3 years, 3 months ago)

An informative post, but unless it's a misdemeanor, IMO you will be wearing an orange jumpsuit and ankle shackles when you meet the judge. Felonies don't bail out before a hearing.


--------------------
"The Rolling Stones will break up over Brian Jones' dead body"    John Lennon

I don't want no commies in my car. No Christians either.

The worst thing about corruption is that it works so well,


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