Molly powder
Molly powder ()

The legal problems of convicting someone on the basis of trace amount of exotic designer drugs require telling a jury that a defendant can be convicted only by importing enough of a synthetic drug to make it valuable, a federal judge has ruled.

Eastern District Judge Jack Weinstein noted that trace amounts of other drugs, such as cocaine, can be found on most paper currency in the United States, and that a felony conviction must be supported by more than “de minimis” amounts of a synthetic drug. Weinstein made that ruling in last week’s trial of Chin Chong, a defendant in a scheme to bring the controlled substance methylone, commonly known as “Molly,” into the United States from China.

Synthetic drugs, manufactured in a laboratory rather than processed from organic materials, have posed new challenges for law enforcement in recent years due to the legal vagaries regarding its status as a controlled substance. Molly is only a recent addition to the list of controlled substances, and new variations are created all the time, so not every variation is considered a controlled substance, or at least not right away.

Weinstein had made a second ruling on jury instructions on the mens rea element needed for a conviction—a charge he said was necessary given the evolving nature of designer exotic drugs.

“Given the harsh penalties that attach for the instant crimes—Chong faces up to 80 years in prison if convicted on all counts—the jury here must be persuaded of the defendant’s knowledge that the substance he is charged with trafficking was on the proscribed list,” he said in United States v. Chong, 13-CR-570.

The case ended Friday in a mistrial, with the jury voting 11-1 to acquit after deliberating for two days. The judge never had to deliver his novel instruction on “trace” amounts of the drugs because it was made conditional on a guilty verdict on one of the counts, and the jury couldn’t reach a decision.

Weinstein had given jurors a charge on mens rea that set a higher bar for prosecutors.

The case was triggered last year when customs officials at John F. Kennedy International Airport intercepted an envelope from China containing a crystallized substance that a field test indicated was methylone.

They replaced the substance with an equal amount of brown sugar and delivered it to its address at a Rugs USA store in Westbury. Authorities persuaded the recipient of the letter, Harpeet Singh, to admit his guilt and cooperate in the investigation, which led to Chong’s arrest.

Chong went on trial on two counts of conspiracy and single counts of importation of methylone and attempted possession of methylone with intent to distribute. The relevant statutes are 21 U.S.C.§§952(a), 960(a)(1) and (b)(3); 21 U.S.C. §§846 and 841(b)(1)(C).

Singh testified against Chong on Jan. 6.

On Wednesday, in the first of his two orders, Weinstein said pretrial testimony by a forensic chemist revealed that the substance seized from the envelope was not tested for purity. The government told the court that the Drug Enforcement Agency, which had routinely tested for drug purity in cases, had stopped conducting purity analysis a few months ago because of budget constraints.

Weinstein said the lack of analysis raised “a significant legal problem,” because jurors could find Chong imported a “detectable” amount of the drug but might still have a reasonable doubt as to whether he knowingly imported a “de minimis” quantity.

“De Minimis is interpreted to mean a quantity that is unmarketable as an illegal drug because it is insufficient to provide any of the physiological or psychoactive effects a consumer of such substances might seek,” the judge said.

Therefore, Weinstein said, if the jury returned a guilty verdict on Count Two of the indictment, importation of methylone in violation of 21 U.S.C. §§952(a), 960(a)(1), and 960(b)(3), he would have posed to the jury a supplemental instruction asking jurors to decide if the government proved the defendant or his confederates “imported more than a trace amount of methylone. A ‘trace amount’ is a quantity that has no value to someone seeking to use, sell or distribute methylone.”

He said the government was arguing that knowingly importing “a single molecule” was enough under the §960(a), an interpretation that would “generate absurd results.”

Weinstein cited commonly known “credible studies” indicating that up to 90 percent of U.S. paper currency is contaminated with a ‘detectable amount’ of cocaine. “Would a knowledgeable judge with a contaminated $10 bill carried in his wallet on return to the United States from a judicial conference in London be committing a serious drug crime?” he asked.

The judge’s second order on the mens rea requirement instructed the jury that it could consider “the date on which 3,4-methylenedioxy-N-methylcathinone became a controlled substance, the total numbers of chemicals known as ‘Molly,’ any actions by the defendant suggesting that he knew he was dealing with an illegal controlled substance, and an admission by him, if any, on that point.”

The judge said the instruction was necessary because makers of synthetic drugs are known to market new versions of Molly once older ones are banned as controlled substances and because “it is not uncommon for different batches of ‘Molly’ to contain different drugs.”

“The mens rea requirement reflected in the instruction should be construed as importing the mistake-of-law defense into the statutes for the limited purpose of dealing with criminal activities in connection with exotic designer drugs,” he said.

Assistant U.S. Attorney Nadia Moore represented the government. The Eastern District U.S. Attorney’s office has not said whether it will seek a retrial.

Chase Scolnick of Federal Defenders of New York Inc. represented Chong. Scolnick declined comment.