Indiana
Man
Challenges
Constitutionality
of
Analogue
Laws
6/21/02
Mark Niemoeller sees himself as an all-American entrepreneur who works hard to make a living. The United States Attorney's Office sees him as an interstate drug trafficker facing up to 25 years in prison and $1 million in fines. Niemoeller, 45, has operated JLF Poisonous Non-Consumables for 16 years on a family farm that he has lived on his whole life in Elizabethtown, Indiana, about 50 miles southeast of Indianapolis. He used his own capital, never taking out a loan. Niemoeller was indicted on January 22 on 13 counts of felony drug distribution. The alleged drugs in question were sold over the Internet, according to the US Attorney's Office of the Southern District of Indiana in Indianapolis. Niemoeller maintains his innocence. He declined comment for this article, but did issue a prepared statement about the situation. "I legally purchased all my products on the open market without any special licenses, and still could today; no matter that most of my sources are still in operation and still sell those same items and to my knowledge have not been approached by the Feds," says Niemoeller in his statement. Some of the charges are unconstitutional, says Niemoeller's lawyer, Andrew C. Maternowski, who is based in Indianapolis. The US Attorney's office alleges that Niemoeller sold 2C-T-7 and butanediol. Prosecutors further allege that the substances are similar enough to the controlled substances Nexus and GHB to be considered illegal. "Butanediol, though, is not very similar" to the GHB, says Lesley Brown, a chemistry professor at Goucher College in Baltimore, Maryland. Butanediol has a molecular arrangement that makes its properties significantly different, Brown says. Butanediol, when consumed by humans, is broken down in the body to GHB, according to Christian Fibiger, Vice President of Neuroscience at Eli Lilly, a pharmaceutical manufacturer headquartered in Indianapolis. 2C-T-7 and Nexus are "sufficiently similar" for there to be a possibility that they would have "similar biological activities," says Fibiger. The Attorney's office will be calling expert witnesses from the Food and Drug Administration to testify that the substances are analogous. The FDA was the primary agency in Niemoeller's arrest. Maternowski wants the three charges regarding butanediol and 2C-T-7 dismissed because the law that allows for prosecution of the sale of analogous substances is too vague for "a person of common knowledge" to determine if the substance is illegal; therefore the statute is unconstitutional, says Maternowski. Additionally, says Maternowski, GHB was not yet scheduled as a Schedule I or II substance. Controlled substance analogue laws only apply to Schedule I and II substances, legally considered to be the most harmful. The Attorney's office is also charging Niemoeller with selling safrole, a substance used in the manufacture of the illegal drug Ecstasy, with the knowledge that it would be used for illegal purposes. Niemoeller denies he had reason to believe that the safrole was being used for illegal purposes, says Maternowski. The substance that Niemoeller was selling was actually sassafras oil, which contains safrole, but may or may not be covered by the same laws, according to Maternowski. Most of the charges against Niemoeller are for dispensing prescription drugs without being "licensed by law to administer such drugs." Such distribution would only be illegal if the intended purpose were for human consumption, says Maternowski. All products that JLF sells are sent with a disclaimer that gives directions for use of the product, indicating that all products are not to be ingested, along with a document indicating any potential hazards, according to the company's web site. Instead, according to the disclaimers posted on the Internet site, the goods are intended to be used as incense, sacraments, for art, research, collection and many other listed uses. Niemoeller was arrested on January 29 and released the following day on his own recognizance after agreeing not to sell certain products. He is also required to submit to random urinalysis, court records show. The FDA, joined by Indiana State Police and the Drug Enforcement Administration, conducted the arrest, according to Niemoeller. The FDA, says Maternowski, sent no warning that Niemoeller was doing anything illegal. The indictment states that in accordance with asset forfeiture laws, the funds in two personal banks accounts, along with more than $6,000 in cash and a 1998 Dodge Ram Maxivan were seized along with other unspecified property. About $1.25 million in assets were seized including data, inventory and the vehicle and an additional $750,000 in bank accounts, according to Niemoeller's statement. Asset forfeiture laws allow any assets determined by the arresting agency to have been connected to a drug-related crime to be seized upon arrest. Maternowski is providing legal services without compensation, because Niemoeller's funds are seized, he says. Maternowski is currently petitioning the court to release some of Niemoeller's funds for him to be able to mount a defense.
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