'Molly' Must Have Value for Conviction, Judge Says

, New York Law Journal

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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).

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