City Paper is not for tourists
Nebiyu Jamal Fanta was still training as a clerk at Benning Market & Dollar Plus in December 2013 when narcotics investigators from the Metropolitan Police Department came in asking whether the store sold products such as “Spice,” “K2,” or “Scooby Snax.” Fanta said no and consented to a search, which nevertheless turned up 1,822 packets of what are known as synthetic cannabinoids. No arrests were made.
Investigators had visited this shop before. In March 2013, MPD Chief Cathy Lanier had assigned them to visit stores across the District to notify owners that the sale of such products was illegal. Manager Mohammed Wollie had assured them the Kingman Park convenience store would not be a problem.
Just two months later, an undercover agent purchased a 3.5-gram packet of “Bizarro” for $15 from the store. Investigators found a safe containing 557 packets of that and similar brands, plus $3,114 in cash. This time, Fanta was arrested. For reasons law enforcement officials decline to explain, the U.S. Attorney’s Office, which prosecutes felonies in the District, did not charge him with any crime, and he was released.
But in October 2013, a D.C. grand jury indicted Fanta for possession with intent to distribute a controlled substance and extradited him from Minnesota. He is due in D.C. Superior Court on Sept. 9. Thus far, no other charges have been filed in the case.
Until this summer, Fanta’s was one of only five cases on file in D.C. Superior Court, even as MPD Chief Cathy Lanier and Mayor Muriel Bowser cite synthetic drugs as a contributing factor to a recent spike in D.C. homicides and tout some 70 synthetic drug-related arrests this year. Overdoses among homeless persons have further elevated the issue to what is being described as a public health crisis and a threat to public safety. D.C. officials said they initially suspected synthetic drugs were a factor in the stabbing death of 24-year-old American University graduate Kevin Sutherland aboard a Metro Red Line train on July 4, then began to question the suspect’s mental state. Lanier has cited the drugs as a factor in three other unidentified homicides, and in July, the Pretrial Services Agency says 20 percent of recent violent crime suspects had tested positive for synthetic drugs.
Now, after years of dithering, and in the midst of a summer crime wave, D.C. officials have leapt into action with a series of legislative, regulatory, and investigative efforts—both civil and criminal—aimed at preventing the drugs from overwhelming a city. But in spite of the newfound urgency, the question remains: What took them so long?
Synthetic drugs are not a new phenomenon. Since 2008, the Drug Enforcement Administration has identified more than 400 different types, sometimes at a rate of two per week. Synthetic cannabinoids, so named because they sometimes mimic the effects of THC, consist of man-made chemicals applied to leafy plants such as damiana and marshmallow leaf, then labeled as incense or potpourri and “not for human consumption.” Inexpensive, and colorfully packaged with silly names, the drugs are popular among high school students: In 2012, one in nine reported that they had used the drugs at least once. The National Forensic Laboratory Information System found usage skyrocketed from just 23 reported cases in 2009 to 32,784 in 2013.
Prior to 2010, no government entity controlled the drugs, though the federal Controlled Substance Analogue Enforcement Act of 1986 allows authorities to treat synthetics as controlled substances if they are “pharmacologically similar” to Schedule I or II drugs. (Schedule I drugs are those which have no medicinal value and a strong potential for abuse.) In 2011, the DEA exercised its emergency scheduling authority over five types of synthetic cannabinoids. By 2012, the substances were classified as Schedule I drugs. The Synthetic Drug Abuse Prevention Act placed 26 cannabinoids into Schedule I, and the DEA continues to add to the schedules.
States have gotten involved in controlling these drugs, too: At least 43 states have taken action to control one or more synthetic cannabinoids. In order to prove that a new drug is an analogue of a controlled substance, the government must convince a judge or jury that the chemical structures and pharmacological effects are similar, and that the substances are intended for human consumption. The DEA says it has, along with federal and state agency partners, executed three significant synthetics operations since 2012: Operation Log Jam resulted in enforcement actions in more than 115 cities across 32 states; and Projects Synergy and Synergy Phase II led to seizure of more than $145 million dollars in drug-related assets and more than 50 tons of synthetic drugs, with large transfers of the proceeds traced to Yemen, Syria, Lebanon, and Jordan.
According to DEA spokesman Rusty Payne, none of those takedowns involved cases out of D.C.
The rising number of problems—especially medical emergencies—linked to synthetics precipitated the DEA’s crackdown response. According to the American Association of Poison Control Centers, nationwide emergency calls related to cannabinoids rose from 2,668 in 2013, to 3,680 in 2014, to 5,652 through August of this year. D.C. is no exception: Recent anecdotal reports indicate that high schools, homeless shelters, jails, and youth rehabilitation centers are teeming with overdoses and individuals presenting with alarming symptoms that are difficult to diagnose.
What officials characterize as a public health crisis or an epidemic of abuse also appears to be rooted in a sluggish response by both local and federal governments to glaring signs of trouble ahead.
Retail purchase of Spice and related products was as easy as buying a can of soda when, after making a number of undercover cocaine buys and obtaining a search warrant, MPD drug investigators entered the D.C. Fish Carryout at 3475 14th St. NW on Feb. 2, 2012, and found plastic bags, scales, cocaine, and a pound of K2. The synthetics were not yet illegal in the District, so the owner, Suk In Hyun, pleaded guilty to distribution of the coke and was sentenced to a year of probation.
But in a handwritten note on the plea agreement, a prosecutor with the U.S. Attorney’s Office noted, “This agreement does NOT encompass or relate to the ‘K2’ or synthetic marijuana/cannabinoids found in the Fish Carryout. The government reserves the right to bring federal charges against [Hyun] relating to the K2 and/or synthetic cannabinoids in the store.” Not only did the U.S. Attorney’s Office never bring federal charges in the case, until this week, the office had not publicly charged any seller or distributor of the substance in federal court.
Abuse of synthetic cannabinoids continued unrestricted throughout 2012, prompting the D.C. Council to adopt legislation to add them to the D.C. drug schedules that largely mirror the federal schedules. But instead of classifying them as a Schedule I drug like the federal government does, the District classified them as a Schedule III drug, on Nov. 29, 2012. Schedule III classification is reserved for drugs that have medicinal value, which Spice does not. The contradiction left prosecutors without authority to charge anyone caught selling the drug.
The Council compounded its error in December 2012 when it approved legislation that subjected users to up to six months in jail, ignoring one of the fundamental truths of drug enforcement: Prosecuting users does not work. “The war on drugs has a long history of giving authority to crack down on users with the same outcomes year after year,” says Grant Smith, federal policy director of the Drug Policy Alliance, which at the time urged the Council to regulate the sale to minors and go after retailers.
The D.C. Department of Health was the first agency to take remedial action, using its emergency rulemaking authority in November 2013 to classify “cannabimimetic agents” as Schedule I drugs, a rule that would remain in effect for 120 days, giving the Council four months to enact legislation. Those 120 days came and went, however, and the rule expired, again allowing sales and use to go unchecked. Finally, DOH implemented a rule that made synthetic cannabinoids a Schedule I drug on Oct. 20, 2014—more than two years after investigators found a pound of K2 at D.C. Fish.
Neither Council Chairman Phil Mendelson, who chaired the Committee on the Judiciary in 2012, nor Tommy Wells, who succeeded him, nor Kenyan McDuffie, who currently chairs the committee, returned calls for this article. Bowser’s office referred questions to DOH and the D.C. Department of Consumer Regulatory Affairs.
“You a day late and a dollar short, baby,” said a store clerk named Denise one day in July, when I showed up at Aida’s Electronics and asked if the store sold Spice. “If we still sold it, there’d be a line around the block.” Indeed, Aida’s, at 209 Florida Ave. NW, was once a high-profile seller, clearing $15,000 a week in wholesale alone, according to Denise. She said a middleman would take down an order, go to one of a couple of locations, in either Chinatown or Adams Morgan, and come back with the goods. “There’s lots of ways you can get it,” she said, mentioning the Internet. “But once you start selling it, and people see you’re doing good, you don’t have to look for a distributor. They come knock at the back door.”
During Lanier’s March 2013 initial push to tamp down on these drugs, synthetics were still classified as Schedule III. Investigators made their first visit to Aida’s on March 18, 2013, according to court records, and confiscated 184 packets and 16 jars of the drugs. Authorities told store owner William Early, a former MPD officer, that in the future they would arrest him or any of his employees for breaking the law. They made good on their promise to pay the store a follow-up visit, returning five times over the next 18 months, during which they made three more seizures, four undercover purchases and four arrests (including two of Early); and responded to a shooting.
Despite DEA lab tests that were positive for synthetic cannabinoids at the federal level, Early was never charged in any criminal court, local or federal. Because of an administrative oversight, the emergency regulation that made the substances illegal in the District expired on March 4, 2014, and were not re-instated until June 20, a critical three-month lapse that scuttled any chance for local prosecution. Instead, DCRA eventually designated Aida’s shop as a nuisance property under an April 2014 law that allowed officials to revoke a business’ license if it was caught selling synthetic cannabinoids. A police affidavit from Nov. 13, 2014, states that Early was undeterred by DCRA notices, arrests or police notifications. At one point he simply transferred the business license to a family member to avoid prosecution. It was not until July 15 that the D.C. Office of the Attorney General was granted a permanent injunction forcing Aida’s to shut down for a year.
“We done, baby,” Denise told me during the recent visit. “[Early] might be down in Jamaica by next week.” (A follow up call went to a voicemail message referring callers to another electronic repair serviceman.)
DCRA continued to file revocation notices for five other stores, winning a decision from the D.C. Office of Administrative Hearings to shut down two of them. With MPD’s help, the agency has investigated dozens of additional businesses since the 2014 law went into effect, a spokesman said. (A similar law, hastily approved earlier this summer, now allows MPD to automatically shut down a business for 96 hours without having to seek OAH approval, while DCRA imposes conditions to ensure that owners cease the sales of synthetic cannabinoids.)
Vanessa Natale, chief of the OAG’s Neighborhood and Victims Service Section, says her unit has aggressively used a D.C. statute that allows the OAG and DCRA to halt illegal activity at “nuisance properties” where drugs, guns, or prostitution exist, even though the office does not have authority to prosecute felonies. “Our goal is abatement,” Natale says. “We consider it a win to not go to court.” The OAG, Natale says, has used the rule to shut down several properties in addition to Aida’s.
“If we had jurisdiction I would arrest and prosecute these people,” Natale said. “This isn’t granny in Florida that owns a mom-and-pop store being run by a tenant. We try to do the best we can with what we have.”
So why has the long arm of the law been slow to respond to the growing crisis? Law enforcement offers the narrative—which the media repeats—that the substances are simply too elusive to get a handle on: Drug tests for users do not detect synthetic cannabinoids; the drugs have diverse ways of coming into the marketplace; manufacturers in China keep changing the chemical compounds to evade prohibited drug schedules.
Veteran law enforcers wonder if the Justice Department is equipped to meet the challenges of the epidemic. Former DEA special agent Jonathan Duecker, now the special agent in charge of the Pennsylvania State Attorney General’s Bureau of Narcotics Investigations and Drug Control, says his state schedules drugs more aggressively than the federal government and field tests the substances in order to more swiftly proceed to trial.
“When we come across Spice, we’ll charge under the state controlled substances act like any other drug, but unless you’re seeing a large number of overdoses, you wouldn’t know it’s out there,” Duecker says, distinguishing the substance from heroin and cocaine, which are organic and have more established supply networks. “DEA is in the least best position to enforce it. They are not positioned to go into small bodegas. They’re not first responders. It’s a distant fourth in terms of priority, behind heroin, cocaine, and meth.”
D.C. is hamstrung in this sense because MPD does not have its own drug analysis lab and therefore has to rely on DEA to analyze illicit substances, just as it relies on the U.S. Attorney’s Office to prosecute felonies. Narcotics experts and law enforcers say that, in general, the government does not bring charges unless a lab analysis shows a specific positive match to a Schedule I substance. Although the 1986 federal analogue statute applies to synthetic substances that are “pharmacologically similar” to Schedule I drugs and produce similar effects, it requires proving that they are intended for human consumption, as well as expert chemical testimony, which invites opposing expert testimony from the defense. Yet the paucity of cases filed in D.C. Superior Court related to synthetic drugs also suggests either lack of coordination among partner agencies or plain old bureaucratic gridlock. Officials at the DEA’s Washington Division, which covers D.C., Virginia, Maryland, and West Virginia, do not dispute this notion.
Karl Colder, special agent in charge of that division, says opioids and synthetic opioids pose the biggest threat to public health and are a top priority—“hot ticket items, so to speak,” he says. But in a recent interview, Colder conceded the rise of synthetic drug arrests in 2011 and 2012, coupled with the chemical complexities and high volume requests for lab analyses in general, led to a “log jam” that requires better coordination with MPD and the U.S. Attorney’s Office. “All drug evidence has to be tested in our labs, so it’s key that we are on board with whatever agency is requesting analyses,” he says. “If we don’t identify those [evidentiary] exhibits, that’s where delay comes in. That’s where we were having coordination issues.”
According to Colder, MPD can take its seized evidence directly to the DEA’s drug testing lab in Largo, Md., but if they do not coordinate with his office, then that can result in delays, depending on how other agencies’ requests for lab analyses are prioritized. MPD also can submit its evidence in court through the U.S. Attorney’s Office, Colder says, but prosecutors prefer drug evidence to come through DEA first, after it has been analyzed at the DEA lab in Largo. The U.S. Attorney’s Office deferred to MPD for answers about how it handles seized drug evidence. In an email, Gwendolyn Crump, an MPD spokeswoman, says, “Illegal drugs seized are sent to the DEA lab for analysis.” She did not elaborate.
“Every agency wants to be independent,” Colton says, adding that the agencies “are putting past differences aside” to become better coordinated. “The issue is how to get evidence to the U.S. Attorney’s Office for prosecution. It’s really about sharing information and coming together as one unit to solve a problem.” In that spirit, Colder also notes that DEA is offering to assist the District in establishing its own drug testing lab. (The D.C. Department of Forensic Sciences already boasts a cutting-edge Consolidated Forensic Laboratory, though a national accreditation agency suspended it in April for 30 days, finding that city analysts “were not competent.”)
In law enforcement parlance, a case is “no-papered” when the U.S. Attorney’s Office declines to prosecute the individual whom police have arrested and charged with a crime, or when it shelves the case indefinitely. City Paper reviewed more than two dozen synthetic drug-related arrest reports dating back to 2012—not including the more than 70 arrests Lanier says her department has made in 2015. When asked about the number of arrests vis-a-vis just five cases filed in D.C. Superior Court, William Miller, spokesman for Acting U.S. Attorney Vincent Cohen, says, “Just because a case is no-papered doesn’t mean it’s dead. Some of these are ongoing cases.” (The office filed two more cases just last week, Miller says, and has others in the pipeline, including longer-term investigations that reach beyond D.C.’s borders.) A press conference at MPD headquarters on Wednesday, which showcased a $2.3 million bust, seems to show that agencies are finally engaged. No one at the press conference, however, would speak to the relatively small number of prosecutions.
Given past differences among D.C.’s local and federal law enforcement agencies, it’s not hard to imagine how a problem like Spice or K2 could metastasize. Observers have taken note: Teri Janine Quinn, advisory neighborhood commissioner in the Ward 5 district that includes Aida’s, says she hounded the city for months for real, tangible action. “MPD officers were doing everything allowed under the law,” Quinn says. “I pushed them as much as I could. It was frustrating for them, for the residents, and for me.”
Natale, of the OAG, confirms that the city’s criminal law enforcement bureaucracy has been a factor in D.C.’s lack of prosecution of synthetic drug cases. “Anecdotally, I have heard of frustration over this conundrum of delays or refusal to conduct lab tests,” she says.
The U.S. Attorney’s Office says it has been actively pursuing synthetic drug cases and has established a Rapid Indictment Process. Cohen, in particular, has been going out into communities for years, talking to youth and homeless persons about the dangers of the ubiquitous yet somehow elusive drugs. The office also is exploring backup plans such as looking to independent drug analysis labs to expedite evidence processing. Says Cohen: “Our job is to bring local and federal resources together to make it work. We are attacking this problem on multiple levels. When we get a prosecutable case, we act on it.”
His office should have plenty to work with. Crump says the MPD’s Narcotics and Special Investigations Division has 180 officers dedicated to various specialized units, though she did not specify whether any are dedicated solely to the Spice epidemic. She cited 450 reports of overdoses in June alone, and massive amounts of synthetic drug seizures to illustrate the gravity of the problem and efforts to solve it.
Yet even in recent months, after multiple arrests and seizures, consequences for corner store owners have been far from dire. In July, DCRA shut down its first store, Bladensburg Market Dollar in Trinidad, and ordered the store closed for 96 hours while they weighed potential fines and imposed a remediation plan. But arrest records show that while investigators seized more than 1,000 packets of synthetics between September 2013 and August 2014, no criminal charges have yet been filed.
Fanta’s case is even murkier. Originally no-papered, Fanta now is the first person to be charged in D.C. Superior Court. But why him, a store clerk, and why not the manager, Mohammed Wollie, or the store’s owner? Even if prosecutors have the right man, why did it take them seven months from the time of the first seizure to charge him?
Fanta’s lawyer declined to discuss the case, citing his pending trial date. Reached in Minnesota, where he is under “High Intensity Supervision,” Fanta says he never saw the drugs enter the store and the manager never gave him any specific instructions other than to sell it. He says he didn’t know it was illegal until the police came in. Asked why he thinks he was targeted, he vaguely suggests he is being made a scapegoat. “I am Muslim,” he says quietly.
On a recent visit to Benning Market & Dollar Plus, Wollie, the store manager, was behind the enclosed cashier’s area. He said the store had been sold, and he declined to identify either the former or the current owner. Though wary of my questions, he said it was business as usual, except the store no longer sold Spice. However, around the corner, young men congregated in alleys, and homeless men and women huddled nearby, with desperate looks that suggested a break from reality—or a trip to the emergency room—was just a small, colorful packet away.
Editor’s note: An earlier version of this story misstated the date that the D.C. Office of the Attorney General went to court to seek an injunction against Aida’s Electronics, which eventually had its business license revoked for a one-year period based on the illegal sales of synthetic cannabinoids. The office first filed for the injunction on November 17, 2014. D.C. Superior Court granted the injunction on July 10, 2015.