Danny Jones Podcast - #197 - America's Shadow War on Clandestine Chemistry | Jordan Rubin
Aired: 2023-08-08
Duration: 02:13:27


=== Justifying the War on Drugs (15:23) ===

[00:00:08]  How the hell does a New York City narcotics prosecutor become this writer and write books like this about the war on drugs?
[00:00:20]  I don't know.
[00:00:20]  Hold your book up, Bizarre, so people can see what it is.
[00:00:24]  The surreal saga of America's secret war on synthetic drugs and Florida's kingpins that it captured.
[00:00:32]  I don't know.
[00:00:32]  You know, if I just woke up here, you told me that 10 years ago, I wouldn't have believed you or thought maybe I was kidnapped or something.
[00:00:38]  But it's really just an adventure that I'm still feeling out.
[00:00:42]  I loved.
[00:00:43]  Being a prosecutor.
[00:00:44]  I was doing that for about five years.
[00:00:47]  It wasn't that I was disillusioned or anything, but wound up going on a bit of a new adventure in media.
[00:00:52]  And that's how I wound up getting into the media.
[00:00:54]  You're only in your mid 30s.
[00:00:56]  How does one become a New York City narcotics prosecutor?
[00:01:00]  So, most people, so I started at the Manhattan DA's office, and most people there are coming right out of law school.
[00:01:06]  So, you can be in your mid 20s when you're starting that.
[00:01:10]  Some people are older, but it really depends how you. come to it.
[00:01:15]  So not everyone starts in the narcotics unit and I didn't know that that's where I was going to be either.
[00:01:19]  It's actually sort of a smaller office that's loosely connected to the Manhattan DA's office, the Special Narcotics Prosecutor.
[00:01:27]  Sort of a little known office but it has jurisdiction over narcotics related felonies throughout the whole city of New York.
[00:01:34]  So not just Manhattan even though most of the people there are Manhattan prosecutors.
[00:01:38]  So you really get a window into the drug world and it's not just drugs but anything that's connected to it.
[00:01:43]  So obviously you wind up getting into guns, identity theft, all sorts of things that Crime and cartels are involved in.
[00:01:51]  So, what sort of things were you seeing day to day being a prosecutor?
[00:01:56]  It varied.
[00:01:56]  So, obviously, the things that people were most interested in doing were long term investigations, wiretaps.
[00:02:02]  It was really wild being able to do that as a young lawyer, not long out of law school, like the stuff you see on TV.
[00:02:10]  It really is like that in terms of being able to do those sort of investigations.
[00:02:15]  I want to be clear though, not everything was like that.
[00:02:17]  There was really the lower level sort of street.
[00:02:22]  Buy and bust lower level case that was somewhat of the bread and butter of what you'll do when you start out, like any other job, right?
[00:02:28]  You start doing the thing that's at the lowest level, but there was an opportunity to do really interesting investigative type of work that had an international component to it, too.
[00:02:39]  So it wouldn't be unusual to be doing wiretaps and people being extradited from Colombia or another country.
[00:02:46]  And maybe it's surprising to hear for what's technically a local prosecutor's office, but it really did have a international.
[00:02:53]  So you got to get involved in some really heavy stuff pretty early on.
[00:02:57]  So you guys were like wiretapping people involved in cartels that were moving lots of drugs in different countries and getting them extradited to the United States?
[00:03:07]  I mean, there wasn't someone being extradited every day, and the people you're wiretapping, there had to be a connection to the jurisdiction that you're in, right?
[00:03:14]  So this was in New York.
[00:03:15]  So it's like anything, you build an investigation up.
[00:03:18]  It's pretty well known, I think, for people who are involved in it.
[00:03:21]  I don't think I'm revealing anything that's super secret here, but it might.
[00:03:26]  Start off with something very mundane, a street level sale that winds up building a huge case where you do wind up extraditing somebody from Columbia or some other source country of where the narcotics are coming from.
[00:03:38]  Interesting.
[00:03:39]  And how many of these types of cases did you work on throughout?
[00:03:43]  How long were you a prosecutor for in total?
[00:03:44]  So from 2012 to 2017, so about four and a half, five years.
[00:03:50]  Okay.
[00:03:50]  And so how many different cases did you work on as a prosecutor or did you prosecute?
[00:03:54]  Yeah, so it was both.
[00:03:56]  So I started off in the trial division and wound up going to the investigation division, but.
[00:04:00]  Division, but the names are sort of a misnomer because even in the trial division, I did some investigative work, and in the investigation division, I did some trial work as well.
[00:04:09]  So it was always a mix of both going on.
[00:04:11]  So I did maybe a dozen or so trials, some of which was me as the first chair leading them.
[00:04:18]  As a young prosecutor, you get an insane amount of experience as a young lawyer.
[00:04:24]  I think regardless of what your ideology is or however you want to call it, people like it.
[00:04:30]  One of the reasons is that you just get so much trial experience, regardless of whichever side you're on, whether you're a prosecutor or a public defender, you get thrown into court way sooner than if you go and work at a big law firm right out of law school.
[00:04:43]  You might not be doing anything like that kind of thing for 10 years that a person who's going into a prosecutor's office or public defender's office is doing.
[00:04:51]  So you're really thrown right into the fire as a young lawyer.
[00:04:54]  It's so interesting.
[00:04:55]  I've always been really curious about the perspective of people like you as a prosecutor that work on.
[00:05:04]  On prosecuting all these people all around the world who are involved in distributing drugs.
[00:05:11]  But, like, they must know that it's not moving the needle one bit as far as like getting drugs off the street or saving lives or doing any of that stuff.
[00:05:22]  Like, I have this one lawyer who comes in here all the time.
[00:05:23]  He's a good friend of mine.
[00:05:24]  He, one of his first cases he ever took as a public defender was a ship captain who was, he was captaining a cargo ship from Colombia to, I think it was to Tampa.
[00:05:39]  And he's basically, his ship got taken over by the cartel.
[00:05:43]  They basically held a gun to his head and said, if you don't take all this coke to Florida, we're going to kill you and your whole family.
[00:05:48]  We know where everyone lives.
[00:05:50]  And so he did it.
[00:05:52]  And they basically were trying to give him life, you know, give him like the worst possible life plus cancer.
[00:05:57]  Exactly.
[00:05:58]  Right.
[00:05:58]  Yeah.
[00:05:59]  And he ended up getting it.
[00:06:00]  This guy ended up helping him beat the case.
[00:06:03]  But it's like an example of all the work that goes into prosecuting these.
[00:06:08]  People who are just essentially pawns in this giant network bureaucratic business that doesn't stop.
[00:06:18]  And it's like you're not doing anything to move the needle, no matter how much work and money and time and effort is put into this and how many people are put behind bars, you know?
[00:06:26]  So I was like, anyways, that was long winded, but like my point was I was always interested in the point of view of the prosecutors and the people that are involved in like putting these people behind bars.
[00:06:37]  Sure.
[00:06:37]  So there's a lot in there and I could talk about that for hours.
[00:06:41]  I have a lot of thoughts about that.
[00:06:42]  Right.
[00:06:42]  I think.
[00:06:43]  What's kind of underpinning what you're saying here is the question of why, right?
[00:06:46]  What's the point of why are we doing this?
[00:06:49]  How does someone who's in law enforcement for decades, right?
[00:06:52]  Not, you know, as a prosecutor for five years, I'm no longer there.
[00:06:56]  I think I can speak to a lot of the mentality that was there, but to the extent you're kind of thinking about why are they doing this, why are they still waging this war if it hasn't been won, right?
[00:07:06]  That's kind of what we're getting at here.
[00:07:08]  And I think that part of it is that that's just not the question that they're asking themselves, right?
[00:07:14]  It's not, if that was the question they ask themselves every day, there would be.
[00:07:17]  There would be no way to survive in any job, right?
[00:07:20]  No matter what your job is, whether it's drugs, whether you're a fisherman, whatever, pick any normal thing.
[00:07:24]  If you're asking yourself every day by acknowledging, I'm not accomplishing the thing I didn't accomplish yesterday, what we set out to accomplish, and we're never going to accomplish it, you just wouldn't be able to move on.
[00:07:36]  I think you're looking at kind of a smaller piece of it or just a totally different mentality, meaning you're going after bad guys, right?
[00:07:43]  And so if at the end of the day you're making an arrest, whether you're taking drugs off the street, Something you can point to, something that's tangible.
[00:07:52]  Even if that's not winning the war on drugs, it's something and there will always be another case, right?
[00:07:58]  Because you're not going to win the war on drugs.
[00:08:01]  So that's not I'm not saying that was my mentality, but just to kind of offer probably a way of thinking about it, if you're asking how could someone do this every day, right?
[00:08:10]  I think they're just not asking themselves the question of how are we going to win the war on drugs today.
[00:08:16]  I think it's much more mundane.
[00:08:17]  Like, I have this case in front of me.
[00:08:20]  What do I need to do to complete this investigation, to get this particular load of drugs off the street?
[00:08:25]  Prosecute this case.
[00:08:27]  They're just not grappling with those bigger questions.
[00:08:30]  Certainly not the people I think who are line prosecutors who are there every day.
[00:08:35]  It's not that you don't think about it, but it's just not going to be your animating principle, I don't think, because it can't be, right?
[00:08:41]  Because you're not actually winning that war if that's the way that you conceive of it.
[00:08:46]  Yeah.
[00:08:46]  I mean, it must just be some sort of I mean, at some level, there's got to be some sort of like diffusion of responsibility, I guess, right?
[00:08:52]  When everyone else you're working with and you're surrounded with is doing the same thing and it's a good business.
[00:08:57]  You guys.
[00:08:58]  I guess they can justify it in their own way, like putting away bad guys, even though these bad guys are, you know, they may not be the ones in charge making, calling all the shots.
[00:09:08]  There's still some sort of a, even if you can prosecute somebody who is essentially just trying to feed their family by moving drugs, it looks good if you paint it the right way.
[00:09:20]  Sure, but to take it even a step further, sometimes we were getting the person who was calling the shots, right?
[00:09:25]  And so that's a different story on the kind of bad guy level, right?
[00:09:30]  You know, the example you mentioned of someone who's Kind of put in a tough position and is not a kingpin, they're not making a lot of money.
[00:09:38]  That's easy to look at and say there's something wrong there, right?
[00:09:42]  It should be handled differently, whether it means a person doesn't have any sort of culpability, but someone shouldn't be spending the rest of their life in prison for the situation you describe, as I understand it.
[00:09:54]  But we did sometimes get the people who were the kind of person you allude to, who is maybe the person who was effectively putting that lower level person in that situation, right?
[00:10:05]  And so that raises a different sort of question.
[00:10:07]  Now, I don't think that that still answers the question.
[00:10:09]  It doesn't justify the war, right?
[00:10:11]  It's just a different consideration.
[00:10:13]  I think it makes it easier to keep going if every day, at least the goal is to get that real bad guy and there's a possibility of doing it.
[00:10:22]  I think that answers the question of what is the motivation behind the people doing it aside from the motivation being, okay, this is going to end the drug war.
[00:10:31]  Right, right.
[00:10:33]  I'm sure you're familiar with the guy named El Mayo.
[00:10:36]  I know the name.
[00:10:37]  Yeah.
[00:10:37]  The big.
[00:10:38]  He's like the biggest guy.
[00:10:39]  He started the Sinaloa cartel.
[00:10:41]  It's just like fascinating to me how people like that are just like living in luxury in Mexico, like secluded.
[00:10:46]  They stay off the, you know, they stay off the papers, they have the media, and all you hear about is like people like El Chapo's kids.
[00:10:52]  Right.
[00:10:52]  It's just like the media frenzy around them.
[00:10:54]  But you have like the big old rich guy who's basically like started everything, who's essentially immune to, you know, I don't know how much DEA presence is in Mexico or like how much of like American.
[00:11:09]  Undercover officers or agents are down there working on this stuff still.
[00:11:12]  But it's just always something that's really baffled me, especially when you see people like El Mayo that are just still out there living freely.
[00:11:21]  Right.
[00:11:22]  But that's kind of an example of if you're in the DEA, you look at kind of a situation that described and say, okay, that's who we should be going after, right?
[00:11:30]  As opposed to saying, we should just get out of this business because we're not solving anything, right?
[00:11:35]  So it's kind of two different ways to look at it.
[00:11:37]  And I'm not even saying that that's the way I look at it.
[00:11:39]  And that is just kind of another perspective if you're.
[00:11:42]  Beating your head against the wall and saying, How is this possibly going on?
[00:11:46]  And that doesn't justify it, but I think it does explain it in a real way.
[00:11:51]  And then the other dimension of this is the fact that if you did take out somebody like that, it would just be a power vacuum, right?
[00:11:57]  Somebody would replace them instantly.
[00:12:00]  Well, right.
[00:12:00]  Because no matter whatever person around the world dies, that's not going to change the fact that people sitting here in the United States and throughout the world are always going to want to change their consciousness, right?
[00:12:14]  And so, as long as there's prohibition, there's going to be a way that that's made more dangerous to accomplish.
[00:12:21]  And so, whether it's A Mexican drug lord, whether it's a pharmaceutical company, whether it's anybody, these are just people who are filling that vacuum, filling that need of the fact that people will always want to change their consciousness.
[00:12:35]  And that's not something that could ever be defeated.
[00:12:38]  It's just what do you do in the face of that reality?
[00:12:41]  And that's something that you and Hamilton talked about briefly in your podcast too, is he brought up the fact that, you know, he brought the question, why haven't we learned our lesson from alcohol prohibition?
[00:12:51]  You know what I mean?
[00:12:52]  Like we made alcohol.
[00:12:53]  We regulated alcohol.
[00:12:54]  We were able to get rid of all the organized crime that was surrounding it and all of that stuff.
[00:12:59]  Like, how come we haven't learned that lesson with some of these other drugs that are out there?
[00:13:03]  Well, it's cultural, right?
[00:13:04]  I mean, it's not an unusual situation if you have someone in law enforcement, DEA, local or otherwise, goes out and makes a drug arrest, right?
[00:13:12]  Then goes home and cracks open a Budweiser, right?
[00:13:15]  And there's maybe at the time of prohibition that would have been looked at in a different light.
[00:13:20]  But I think it's the culture that we're in.
[00:13:22]  What are you even talking about when you say a drug, right?
[00:13:26]  It's kind of a weird question.
[00:13:27]  You're like, wait, what are you asking me, Jordan?
[00:13:30]  But if I were to ask you, when you say drug, what are you talking about?
[00:13:34]  Eventually, you would probably settle on a definition that's provided to you by the government and what's been made illegal, right?
[00:13:40]  Something like that.
[00:13:41]  You wouldn't think that alcohol is a drug, but these are cultural things that we have imbued within us that are handed down by the law.
[00:13:50]  And so, this sort of legal culture where you can be a cop who's making a drug arrest during the day, cracking open drugs.
[00:13:59]  15 Budweisers at night the next day going back and doing the same thing all over again.
[00:14:04]  One is a drug that's going to land that person in prison.
[00:14:07]  The other is something that helps you take the edge off after a long day.
[00:14:11]  The thing that's taking the edge off after a long day might well be more dangerous than whatever that drug is that you arrested someone for.
[00:14:18]  But I think it's a cultural thing where someone could listen to what I just said and say, well, come on, right?
[00:14:24]  Come on.
[00:14:25]  There's no real argument behind it, but there is kind of a come on to it where.
[00:14:30]  There isn't an appetite to really change that for a lot of people, and that's why it doesn't change.
[00:14:35]  Right, right.
[00:14:37]  So you said prosecutor for four years.
[00:14:40]  Four and a half.
[00:14:40]  What made you decide to leave that?
[00:14:44]  Yeah, it was not something that I was expecting to leave anytime soon.
[00:14:48]  It was partly with my wife, now my wife at the time.
[00:14:53]  We weren't married yet, but we were moving from New York to Washington.
[00:14:56]  And so I was thinking about possibly still doing prosecution there, but I thought maybe.
[00:15:01]  Take a look at a new adventure.
[00:15:03]  And I wasn't giving up my law license or anything.
[00:15:05]  I still have it now, but I wound up covering the Supreme Court for Bloomberg, which was just as a lawyer being able to go to Supreme Court arguments and see them up close, or not even just a lawyer, but just if you're a student of history or anything like that.
[00:15:21]  But that was another sort of dream job for me.
[00:15:24]  And so I thought, why not take a chance on that?
[00:15:27]  And it was actually through that reporting that I wound up landing on the Bizarro.

=== The Vagueness of Drug Laws (03:01) ===

[00:15:32]  Story indirectly.
[00:15:34]  Really?
[00:15:34]  How so?
[00:15:36]  So, it was actually through an article I wrote about a case that had nothing to do with drugs, but a Supreme Court case that had to do with vagueness in the law.
[00:15:44]  And it was a decision that was written by Justice Gorsuch, the Trump appointee, who, if you know who he is, you might have a certain impression of him if you don't follow the cases closely.
[00:15:55]  Just knowing that someone is a Republican appointee, it's more of the tough on crime, kind of going back to the culture, right?
[00:16:01]  The more in line with the arrest someone for drugs during the day, crack open 15 Budweiser's at night.
[00:16:07]  You might think that as a judge, if you're appointed by a Republican, you will necessarily have that mentality in a legal way, too, right?
[00:16:14]  But he was sort of an interesting figure in that he would side with some of the Democratic appointed justices on criminal justice type of matters, some of them anyway.
[00:16:24]  So, long way to say he wrote a decision involving vagueness in the law, which sided with more of the defense type position instead of the government type of position, because there's this basic notion in the law of due process, which I think undergirds a lot of.
[00:16:39]  The story of Bizarro that laws need to be clear if we're able to abide by them.
[00:16:44]  And so I wound up writing just a fairly routine article about that.
[00:16:48]  And in response to that article, I got an email from a lawyer for Burton Ritchie, who wound up being one of the main characters in Bizarro, so to speak, saying, Hey, I saw you wrote this article about vagueness in the law.
[00:17:01]  I have something similar that's going on in a case of mine with a vague drug law.
[00:17:06]  The story I wrote about wasn't drugs, but He said there's this secret law where people are being in prison and there's no way to comply with it.
[00:17:14]  And if I was interested, I should follow up with him.
[00:17:16]  And so you get an email like that out of the blue and maybe you take it with a grain of salt, right?
[00:17:21]  You get, as a journalist, as a lawyer, you get a lot of outreach like that.
[00:17:27]  Sometimes it pans out, sometimes it doesn't, right?
[00:17:30]  So I did wind up getting back in touch.
[00:17:32]  And that's what wound up leading to the story of Bizarro, that law being the analog act that Burton Ritchie's lawyer was talking about was that secret law.
[00:17:42]  Right.
[00:17:42]  So, for people out there who don't know what the Analog Act is, what is the Analog Act?
[00:17:47]  When was it implemented?
[00:17:49]  And what was it sort of an effect?
[00:17:52]  Was it started?
[00:17:53]  It wasn't started back in like the Nixon era, right?
[00:17:55]  It was after that?
[00:17:56]  It was the Reagan era.
[00:17:57]  The Reagan era.
[00:17:58]  Reagan era, yeah.
[00:17:59]  And for anyone who hasn't heard of it, you're in good company.
[00:18:01]  Even people who are lawyers, even people who are drug lawyers, haven't heard of this law because it's been relatively little used over the years.
[00:18:09]  And so, even going back, you mentioned Nixon, it's actually helpful to start.
[00:18:13]  There, even though that's not when the law was passed, because under Nixon, he's the one who kind of ushered in the modern drug war era, right?
[00:18:21]  It's sort of people associate with him.
[00:18:24]  If you're someone who doesn't like the drug war, but maybe you don't know everything about it, you might think of Nixon as the most evil character in that story.
[00:18:32]  I don't know.

=== Cocaine Plus One Defined (13:21) ===

[00:18:33]  That's when the scheduling came out.
[00:18:37]  Yeah, the Controlled Substances Act.
[00:18:38]  Exactly.
[00:18:39]  And so that happened under Nixon in the early 70s.
[00:18:43]  It did a lot of things, but for purposes of understanding the Analog Act, one of the things it did is it listed drugs on schedules.
[00:18:50]  And so there's a level of severity of this drug is more dangerous than that drug.
[00:18:55]  And that part of it isn't necessary to understanding the Analog Act necessarily.
[00:19:00]  But the bottom line takeaway is the way you knew a drug was illegal is if it was listed on the schedules of controlled substances.
[00:19:07]  It was.
[00:19:08]  And how did they do you know how they determined how to schedule those drugs and how they were determined to be more dangerous than other drugs?
[00:19:16]  Sure.
[00:19:16]  So it's changed a little bit over the years, but it actually involves health and human services, so not necessarily the drug enforcement arm of it.
[00:19:25]  And so, kind of people who are more real scientists in a way, at least compared to the DEA, which is mainly drug enforcement.
[00:19:32]  Mainly drug enforcement.
[00:19:34]  And so there's a multi factor analysis that they go through looking at the potential dangerousness of a substance, and they'll make a recommendation, and that'll be a big part of it, whether they think that there's potential for a certain substance to be abused, whether nonetheless there's still some sort of medical benefit to it.
[00:19:53]  And once I start saying some of the drugs that are on these schedules, you realize it makes no sense at all because schedule one is the toughest schedule, the one that has the potential for abuse and no.
[00:20:04]  Potential medical benefit.
[00:20:05]  I'm paraphrasing that there, but included among that.
[00:20:08]  So, Schedule One is the worst.
[00:20:10]  Sure.
[00:20:10]  Yeah.
[00:20:10]  In the government's view, included among that are cannabis.
[00:20:15]  That's Schedule One?
[00:20:16]  Yes.
[00:20:17]  Yeah.
[00:20:17]  And so, Schedule Two, and just to give another example to show how kind of squirrely this is and also to maybe kind of curb some disinformation in the process, is fentanyl.
[00:20:28]  And so, wow.
[00:20:30]  Yes.
[00:20:30]  And so, there's a couple dynamics to that.
[00:20:32]  I think it's useful in a couple ways.
[00:20:34]  One, obviously, fentanyl is much more potentially dangerous than cannabis.
[00:20:38]  The fact is, cannabis doesn't have to be seen as dangerous at all.
[00:20:42]  I don't think you're going out on a limb saying that.
[00:20:43]  Yes.
[00:20:44]  But another thing I want to the reason I mentioned fentanyl is because on Schedule Two, you still have, according to the government, this potential for abuse in the same way you do for Schedule One.
[00:20:54]  The difference is, though, it also has that possible medical benefit as well.
[00:20:59]  And so that might be surprising to hear for people when it comes to fentanyl who only know it from headlines about how people are dying from it, right?
[00:21:07]  But it's used in hospitals for pain relief all the time.
[00:21:10]  And so That's in a very short way explaining how absurd it is, obviously, that something like cannabis is listed as more dangerous than something like fentanyl, even though fentanyl, by the way, does have more medical benefits than people might think of at first glance if they haven't thankfully needed it in a hospital or other sort of pain relief setting.
[00:21:33]  What are some other things that are schedule two or schedule even three, like below fentanyl?
[00:21:38]  Yeah, once you get lower, you get into.
[00:21:42]  The stuff that you might find more in like cough medicines, things like that.
[00:21:47]  And off the top of my head, I'm hesitant to say one that's incorrect, but the bottom line is not all of them make sense to put it.
[00:21:55]  What about like meth?
[00:21:57]  Meth, that might be schedule two, I want to say.
[00:22:03]  Because again, you're talking about something that's an amphetamine, right?
[00:22:07]  And there's controlled amphetamines that kids take every day.
[00:22:10]  Yes.
[00:22:10]  And I really don't want to veer, I'm not a scientist, and I don't want to veer out of my lane.
[00:22:16]  I don't.
[00:22:16]  Pretend to be one.
[00:22:17]  But again, methamphetamine, I think someone who's more knowledgeable about the science of it will tell you that there can be, similar to fentanyl, somewhat of a scare issue there too.
[00:22:28]  When you look at what you're actually talking about at the end of the day, you're like, oh, this person's a meth head or something like that.
[00:22:35]  Whereas if you look at the actual thing that's in it, you might know somebody or you yourself might be taking substances that are not that different from it all of the time.
[00:22:45]  Right, exactly.
[00:22:46]  Okay, so we explained the scheduling and how that all got started, and how did that parlay into this analog act?
[00:22:55]  Sure.
[00:22:55]  And so, if you take nothing else from our discussion about scheduling and how it doesn't make sense, at least take the fact that they're at least listed as illegal.
[00:23:03]  So, however stupid it is that whatever drugs are on the schedules, they're there.
[00:23:08]  And so, if you get arrested with them, you can't say, Oh, I didn't know.
[00:23:12]  Too bad, right?
[00:23:13]  Those are illegal.
[00:23:14]  So, what people would do, though, underground chemists, is they would look at The substances that are scheduled on these lists and say, okay, well, if I'm not doing something with something that's not on this list, then I'm in the clear.
[00:23:27]  So, you take a look at the chemical formula, whatever it is, something like, you know, cocaine, hydrochloride, whatever the technical chemical term for it is.
[00:23:36]  And again, this is something that I'm making up by way of example.
[00:23:38]  And you change it from cocaine to cocaine plus one, cocaine minus one, right?
[00:23:43]  And that's something that's not going to be on the schedule.
[00:23:46]  That's not a medical or scientific term, but just to say you're tweaking the substance just slightly enough that you're now dealing with a substance that is not that listed drug.
[00:23:56]  Okay.
[00:23:56]  And so, if you can tweak this molecule ever so slightly for, Any type of drug that's on the Nixon era Controlled Substance Act list, then okay, you're in the clear, right?
[00:24:07]  The government can't touch you.
[00:24:09]  So that creates a problem because, okay, so in my made up hypothetical of cocaine plus one, what does the government do when cocaine plus one starts hitting the streets?
[00:24:18]  You start arresting people for it or trying to, but you can't charge them.
[00:24:22]  So you try and get it scheduled as quickly as possible, right?
[00:24:25]  The problem is this multi factor scheduling process can take a long time, months at least.
[00:24:31]  And so that's a longer time than it takes for someone to make.
[00:24:35]  A new drug and for that to hit the street.
[00:24:37]  So, what first happened is in 1984, they had emergency scheduling, which sped up the timeline of the Nixon era Controlled Substances Act.
[00:24:48]  So, basically, a quicker version.
[00:24:50]  So, you can schedule things more quickly.
[00:24:51]  Again, though, so now cocaine plus one is emergency scheduled.
[00:24:57]  You can't put it out on the street anymore.
[00:24:59]  You could prosecute anyone who's dealing that going forward, but you can't get someone retroactively.
[00:25:04]  So, the person who was one step ahead of you to start.
[00:25:06]  They'll always stay one step ahead of you, even if you can get that drug scheduled and off the street.
[00:25:12]  So that's where the Analog Act comes in because, so you're in.
[00:25:17]  No, I was going to say retro.
[00:25:18]  When you say retroactively, you mean that like if they create something and then later they create a law, you can't charge them for it.
[00:25:25]  Exactly.
[00:25:26]  That's a basic.
[00:25:26]  And again, that kind of goes back to the due process point that I mentioned earlier.
[00:25:30]  For us to order our lives around the law as someone might want to do.
[00:25:37]  We need to know what the law is if we're to have a fair shot at abiding by it.
[00:25:41]  So, again, today, if you go and get a kilo of coke and you get arrested, that's your problem, right?
[00:25:47]  But again, in this made up example, say you know the guy who's got this sweet, you know, this cocaine plus one, which isn't scheduled yet.
[00:25:56]  You get a kilo of that, the cops can't touch you.
[00:25:59]  But then once they go and make that illegal, once they schedule it, they can't then go back and say, look, this guy once had something that is now illegal because that's just not a world that we can live in.
[00:26:11]  But that kind of is a world that we live in now under the Analog Act.
[00:26:15]  So I'll do a brief refresher.
[00:26:18]  You have the Nixon era Controlled Substances Act that had a list of what's illegal.
[00:26:23]  Then you had in 1984 the Emergency Scheduling Law, which was a beefed up timeline of the Controlled Substances Act.
[00:26:30]  So still, it's only forward looking.
[00:26:33]  It's only stuff's illegal once it's on the list, but you could get stuff on the list more quickly.
[00:26:37]  What makes it faster?
[00:26:39]  There's just less of a bureaucracy involved, it's more powerless.
[00:26:42]  But people need to be involved.
[00:26:44]  Yeah, it's centering more power and something that happened more and more over time within the DEA itself.
[00:26:50]  So less from the actual health authorities, more to the cops.
[00:26:55]  Got it.
[00:26:55]  And so, okay, so now we're in 1984.
[00:26:58]  We just got this beefed up scheduling law.
[00:27:02]  The lawmakers in DEA are happier about that.
[00:27:05]  They can do scheduling actions more quickly.
[00:27:08]  But you still have this problem of the Danny example where this little punk, Still got away with that cocaine plus one because it wasn't scheduled yet at the time.
[00:27:19]  Right.
[00:27:20]  So, what do you do to get around that?
[00:27:22]  Because you can't make things illegal going backwards, right?
[00:27:27]  Or else we just can't live in a society that way.
[00:27:30]  So that's where the Analog Act comes in, which wound up passing in 1986, two years after the emergency scheduling law.
[00:27:37]  And so what that law says is the main term that you want to remember is substantially similar.
[00:27:42]  It says if you have a drug that's substantially similar to one that's already on the list of illegal substances, you're on the hook as if.
[00:27:53]  You were selling that illegal drug.
[00:27:55]  So I'll explain that going with our made up cocaine plus one example.
[00:28:00]  So you have cocaine that's on the schedule, you have cocaine plus one that you're making in your garage that's not scheduled.
[00:28:08]  Now you get busted with a kilo of cocaine plus one after the analog act is passed.
[00:28:14]  Even if it's not on the list, if the DEA and prosecutors can prove, and by prove I mean convince a jury that doesn't have scientific expertise, that cocaine plus one is substantially similar to cocaine.
[00:28:29]  Then you've basically just been selling cocaine, my friend.
[00:28:31]  You're on the hook as if it was cocaine because cocaine plus one is substantially similar to cocaine under the Analog Act, or that's what the government would want to prove in order to be able to prosecute you.
[00:28:44]  Got it.
[00:28:44]  So it's sort of just like a big dragnet to catch all the people that are trying to use chemistry to sort of evade these scheduled substances.
[00:28:54]  It's bigger than big, it's infinite because it's infinite.
[00:28:58]  It's only limited by the things that we can create.
[00:29:03]  It's limited, I guess, necessarily in the sense that our minds are, right?
[00:29:06]  And things that we can do.
[00:29:07]  But it outlaws a theoretically infinite number of substances.
[00:29:11]  Anything that a prosecutor can convince a jury is substantially similar to a drug that's on the schedules.
[00:29:18]  Okay.
[00:29:18]  In reality, obviously, if you're holding a pencil, you know, you would think you're probably okay.
[00:29:24]  That's not going to be substantially similar to heroin, right?
[00:29:27]  But once you get closer and closer and closer, it starts to get a little trickier.
[00:29:32]  And in any event, The phrase substantially similar is not a scientific term.
[00:29:38]  And I think that's probably one of the most important things that I could emphasize because when the Justice Department was pushing Congress to pass the Analog Act, it gave at the very least a strong impression that this was something that came from the lab, so to speak, that this was this term of science.
[00:29:55]  And if you don't know anything about science, as I don't, I don't know what you know, but you could be forgiven for thinking maybe that is some kind of technical term, right?
[00:30:04]  And I don't know exactly where they got it from.
[00:30:06]  I have some.
[00:30:07]  Guesses because the term has actually been used elsewhere in the law, not in criminal law as far as I'm aware, but for example, in copyright law for a long time, that would be one of the tests that was used.
[00:30:18]  Is the song substantially similar to this other part of the song such that you're copying it?
[00:30:24]  And it's been elsewhere in law too.
[00:30:25]  So I've had sort of a theory that I haven't confirmed one or the other that the Justice Department lawyers at the time maybe borrowed that from either copyright law or some other part of civil law where that term had been used.
[00:30:38]  So it wasn't necessarily.
[00:30:39]  Introducing a new term into law.
[00:30:41]  But as far as I know, it was introducing a new term into criminal law.
[00:30:44]  And it was introducing it in a way that sort of acted scientific, but really wasn't.
[00:30:49]  Because if you ask any scientist, even with the DEA, at least now after the Analog Act has been passed, when they've testified in these cases, whatever else they'll say, they'll concede that substantially similar is not a scientific term.
[00:31:03]  So it could basically mean whatever they can get it to mean.
[00:31:07]  So you said it's not being used as much now as it was used in the past.
[00:31:12]  So, it really was never used as much as the quote unquote regular drug prosecutions under the Controlled Substances Act.
[00:31:20]  One of the reasons being, I think, is because it's hard.
[00:31:23]  When you have cocaine, okay, there's not a lot of argument about that.
[00:31:27]  But again, in order to prove these cases, whatever there is to say about whether they should be brought in a given case or not, and whether you have sympathy for the government or not, it's a lot of work to bring them because when you have something that's on the schedule, there's no argument about that.
[00:31:43]  There'll be other legal issues to argue.
[00:31:45]  Is it a Fourth Amendment search issue, something like that?
[00:31:48]  But there won't be an argument of like, Is this substance something that you can actually be prosecuted for because it's on the list, right?

=== Synthetic Cannabinoids and Bath Salts (15:13) ===

[00:31:55]  Whatever else to be said for it, it's on the list.
[00:31:58]  And you can say there shouldn't be a list, et cetera, et cetera, but there is.
[00:32:02]  But when you're trying to prove up these analog cases and you're the government, you need to have the scientists, these expert witnesses in court, DEA experts, who can convince a jury that one substance is substantially similar to another.
[00:32:16]  And on the other side, you'll have defense experts saying the opposite.
[00:32:21]  Sorry to interrupt, but this episode of the podcast is.
[00:32:23]  Brought to you by Verso.
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[00:33:55]  Back to the show.
[00:33:57]  When did this whole K2 spice thing first hit the market because I mean, going back to like recap what you just said, it's so interesting because it's literally, it seems like the K2 and the spice stuff was a symptom of cannabis being illegal.
[00:34:16]  And then creating all these other laws was like it seems like it would just be easier to regulate cannabis and it would get rid of all these underground chemists or clandestine chemists or whatever they're called.
[00:34:27]  And you wouldn't have to deal with all this.
[00:34:30]  All these issues with creating laws and these vague laws you're talking about and trying to prosecute all these people.
[00:34:40]  It seems like it's sort of a negative feedback loop.
[00:34:43]  A hundred percent, at least when it comes to the cannabis spice K2 situation.
[00:34:47]  There's no question that at least some of the people who wound up smoking it, and to answer your question of when, this was coming up in the mid to late 2000s, early 2010s, I'd say it was probably the heyday of it.
[00:35:00]  And yeah, there were people who were smoking it because.
[00:35:03]  It was seen as this kind of weed substitute.
[00:35:06]  It happened to be much stronger than weed.
[00:35:09]  It depended on what the exact type of synthetic cannabinoid was in the product, which is another problem because without that sort of regulation, there was no way to know exactly what would be in it if you're a consumer.
[00:35:23]  And so, yeah, people are smoking it because you could still get high, you could still pass a drug test.
[00:35:28]  It happens to be with something that's much more volatile than cannabis.
[00:35:32]  Obviously, if cannabis had not been illegal or at least sold in some government approved type of way, then yeah.
[00:35:40]  It's hard to say that Spicer K2 wouldn't have happened, but I don't think you could say that it would have happened in the way that it did.
[00:35:47]  One of the big areas was in the military, which was having a huge issue with it.
[00:35:52]  Certainly at the time, that's one example of an area where people are drug tested, but still want to have fun, right?
[00:35:59]  And relieve some stress and take the edge off, you know, going if the 15 Budweisers at the end of the day aren't doing it.
[00:36:09]  But yeah, there's no question it's a direct consequence of cannabis prohibition.
[00:36:15]  I had a guy on here.
[00:36:16]  I forget what his name was.
[00:36:18]  I had a guy on the podcast over a year, probably a year and a half, maybe two years ago, who did 12 years in prison for the XLR 11.
[00:36:25]  I believe.
[00:36:25]  Oh, wow.
[00:36:26]  Yeah.
[00:36:27]  He was importing everything from China and he was making millions of dollars.
[00:36:31]  And he eventually got raided by the FBI.
[00:36:34]  If you just go on YouTube, I'm sure you probably have heard of him.
[00:36:38]  If you go on YouTube and just type in, like, type the name of the podcast and then type in Bath Salts Trafficker.
[00:36:45]  I think that was the title of it.
[00:36:46]  Because another one of the compounds that he was selling or manufacturing was, I guess, one of the street terms for it was bath salts.
[00:36:58]  Yeah, just type in bath salts, traffic, or concrete.
[00:37:00]  There he is Justin Smith.
[00:37:02]  Okay.
[00:37:03]  Yeah.
[00:37:04]  So, anyway.
[00:37:05]  So, bath salts, just to kind of orient that within the discussion.
[00:37:10]  So, bath salts were something different from spice that were happening at the same time.
[00:37:16]  A spice.
[00:37:16]  So the ingredients in spice were what's called synthetic cannabinoids.
[00:37:21]  And in bath salts, there were these things called synthetic cathinones.
[00:37:24]  So those are both popular at the same time.
[00:37:26]  It's certainly possible, like if you would go into head shops, those would be two of the popular products of that era.
[00:37:32]  The bath salts were ones that you would hear the stories about people eating each other's faces and you would hear crazy stories of things that happened to people after smoking spice too.
[00:37:43]  But I think the bath salts had some of even the more extreme stories.
[00:37:46]  But both of the spice and bath salts, that's really the same era.
[00:37:50]  I think of the synthetic drug craze.
[00:37:54]  And so, who are these two guys?
[00:37:56]  The lawyer that reached out to you, who were the two guys that he was representing?
[00:37:58]  Sure.
[00:37:59]  So, the lawyer who reached out to me represented Burton Ritchie.
[00:38:02]  Charles Burton Ritchie is his full name.
[00:38:04]  He goes by Burton.
[00:38:05]  And Benjamin Galecki is the other one.
[00:38:08]  Those are the two so called kingpins that I refer to in the title, which they were just convicted as, but their case is currently on appeal, which I could talk about a little bit once I set the stage for it.
[00:38:20]  So, Uh, Burton is a really interesting character, probably one of the more interesting people that I've come across.
[00:38:27]  He's this serial entrepreneur type of figure.
[00:38:31]  He actually was in recovery himself and still is today, like a lot of people in this story somehow are amazingly.
[00:38:39]  And so, Burton was arrested when he was 19 in an acid sale, and this is in Pensacola.
[00:38:46]  This was in 1990, I believe.
[00:38:49]  And so, after that, as part of his to get a pretrial.
[00:38:53]  Diversion deal, he had to go to Narcotics Anonymous and he wound up sticking with that and hasn't used since.
[00:38:59]  But one thing he did after realizing he needed to start a job, one of the things he did, we started this chain of head shops in Pensacola called the Psychedelic Shack.
[00:39:09]  He did this despite having been in recovery and all of that.
[00:39:11]  He checked it with his sponsor, who said, I'm okay with it if it doesn't make you want to use.
[00:39:17]  And Burton said it didn't.
[00:39:18]  So that wound up being one of his main shacks.
[00:39:21]  Psychedelic Shack.
[00:39:21]  The Psychedelic Shack.
[00:39:22]  I would just say he was going to sell the shack.
[00:39:24]  So if you've been in a head shop, it's the typical head shop fair of pipes, bongs, t shirts.
[00:39:30]  Posters, all the stuff that you'll see in there.
[00:39:32]  But this was starting in the early 90s, really.
[00:39:35]  Right.
[00:39:35]  Okay.
[00:39:36]  You know, this was one of the earlier ones of that era.
[00:39:40]  And so it wound up being a chain in Pensacola.
[00:39:42]  He did a bunch of other things at the time, did yoga mat and body piercing supply distribution.
[00:39:48]  He was a big poker player as well, wound up doing that too.
[00:39:53]  He was the main thing was the psychedelic shack.
[00:39:57]  That was what he was known for.
[00:39:59]  But so anyway, when he was in.
[00:40:02]  Narcotics Anonymous, that's actually how he wound up crossing paths in one of the earliest ways with Ben Galecki.
[00:40:08]  So, just to focus on that again, the people who are now sitting in prison together, convicted as synthetic cannabinoid kingpins, that's one of the ways they cross paths as teenagers in Narcotics Anonymous.
[00:40:20]  Ben didn't really see himself as an addict.
[00:40:22]  He was sort of more forced into meetings, but Burton does consider himself an addict and I think considers it probably a good thing that he was steered in that direction.
[00:40:30]  But so, Burton and Ben stayed close over the years, and Ben wound up working at the psychedelic shack.
[00:40:36]  On and off.
[00:40:37]  That wasn't his only thing.
[00:40:38]  He went to school and was sort of doing his own thing, but he had a couple stints of working there and doing tattoos and piercings.
[00:40:46]  That was one of the things that the psychedelic shack was known for because Ben really wound up being an engineer and going to school for that too.
[00:40:54]  And so he had that sort of mindset.
[00:40:56]  And Burton was the wily entrepreneur figure.
[00:40:59]  Burton was kind of in your face and not somebody you could forget if you ever spoke to him.
[00:41:04]  He's the sort of person who everyone I spoke to him about.
[00:41:07]  Two about him for the story.
[00:41:08]  It's sort of either loved him or hate him, but you certainly had a memory of him one way or the other.
[00:41:13]  And Ben was kind of the more mellow, cerebral.
[00:41:16]  They're both cerebral in a way, but they had that sort of yin and yang to them of Burton being the he's in a million places at once, entrepreneur guy running this business, doing a million things.
[00:41:27]  And Ben was the quieter, engineer type guy into heavy metal.
[00:41:33]  They're both science and sci fi nerds and did board games and those sorts of things too.
[00:41:40]  And so.
[00:41:41]  From the psychedelic shack to synthesizing these cannabinoids and importing millions of dollars of stuff from China and doing all that, how did that connection get made?
[00:41:51]  Sure.
[00:41:51]  So let's go to around the time of the financial crisis.
[00:41:54]  This was around, what, 2008, around that time.
[00:41:58]  Burton's running the psychedelic shack.
[00:42:01]  The market's crashing.
[00:42:02]  He's also heavily invested in real estate.
[00:42:04]  Again, he has his hand in a million different pots.
[00:42:07]  And so he's almost at risk of losing the business, the psychedelic shack.
[00:42:11]  He needs something to turn it around.
[00:42:13]  And What's the thing that winds up turning around is spice.
[00:42:16]  So, at the same time, this is when the product happens to be becoming popular in the late 2000s.
[00:42:22]  They're in Pensacola, mind you.
[00:42:24]  This is a military area.
[00:42:26]  And so, you had sailors who were coming in, they're asking him for this stuff.
[00:42:29]  And he took a chance and ordered a batch of it and it wound up flying off the shelves.
[00:42:34]  And that wound up saving the business and really him, him being Burton at the time.
[00:42:41]  Of course, it down the road wound up putting him in prison.
[00:42:45]  Right now, but there was no question to the legality of selling the spice in his shop.
[00:42:50]  Like, he didn't question that at all.
[00:42:52]  There was no.
[00:42:55]  I think that's fair to say because over the years, there have always been these sort of legal high type of products.
[00:43:00]  Herbal ecstasy was another one earlier on.
[00:43:03]  Like they would start selling these things in head shops.
[00:43:05]  Maybe a law would come down or someone would have some kind of health issue.
[00:43:09]  Then people would stop selling them and you would sort of move on.
[00:43:12]  And so I think it was his thing he's doing everything out in the open.
[00:43:17]  If the cops tell him not to do something, he won't do it.
[00:43:20]  He would have, you know, cops security in the store.
[00:43:22]  He would call the cops on his own.
[00:43:24]  Employees for doing illegal drugs.
[00:43:27]  So he was kind of a hard ass in that way from a businessman mentality.
[00:43:32]  That really is what he is, I think, at the end of the day, is a businessman.
[00:43:36]  He just happened to be someone who's running a chain of head shops and is in recovery himself.
[00:43:40]  But he was very open about this with law enforcement.
[00:43:45]  He would call them if his shop got raided.
[00:43:47]  Walter White was a businessman, too.
[00:43:49]  Exactly.
[00:43:50]  The problem with businessmen is they fly too close to the sun sometimes.
[00:43:54]  Exactly.
[00:43:54]  And so I think he would concede probably that they.
[00:43:57]  They flew too close or would have done something different, however, he would put it.
[00:44:00]  But that's how it wound up taking off basically, cannabis prohibition combined with a real estate crash, combined with restrictions on military personnel.
[00:44:16]  If people in the military were allowed to smoke weed at the end of the day, maybe this wouldn't have happened or wouldn't have happened.
[00:44:21]  A million different things you could point to.
[00:44:22]  Right, right.
[00:44:23]  So he was sort of like in the, it was like the perfect sort of Goldilocks.
[00:44:27]  Zone in the era they were in and what was going on with the recession and real estate.
[00:44:31]  And he needed to figure out a way to make money.
[00:44:33]  This wasn't necessarily illegal, but it was sort of like in this gray area.
[00:44:39]  And I'm sure a lot of other people were doing it.
[00:44:40]  He was seeing other people making money.
[00:44:42]  So he thought, you know, better to beg for forgiveness and to ask for permission, maybe.
[00:44:46]  Right.
[00:44:46]  And I think, yeah, it was, it's not just that everyone was doing it, but everyone was doing it out in the open.
[00:44:51]  So it wasn't, you just wouldn't be selling Coke out in a shop, you know?
[00:44:56]  And so it was.
[00:44:58]  No one ever went and there wasn't a law enforcement announcement saying, Hey, we hear this new stuff's on the street.
[00:45:03]  You're all good.
[00:45:04]  But I don't think there was a real question as to, at least not at the time, right, when it was coming out on the market.
[00:45:11]  Now, when it started to get into more legal questions was when, okay, he's realizing he's making a lot of money.
[00:45:16]  This stuff's flying off the shelves at the shack.
[00:45:19]  This stuff being spice, him being this entrepreneurial mind says, Well, there are all these other head shops around the country that want to sell this stuff, I can distribute to them.
[00:45:31]  Sort of cut out the middlemen and become a distributor.
[00:45:34]  And so that's where he got the idea to start actually making spice, not just to sell at the psychedelic shack, but to distribute the head shops around the shops.
[00:45:42]  All the other shops.
[00:45:43]  Yeah.
[00:45:43]  Didn't he also set up like the psychedelic shacks all around the country?
[00:45:49]  Those are just in the Pensacola area.
[00:45:51]  Just in Pensacola.
[00:45:51]  All around the country.
[00:45:52]  There was one in Vegas?
[00:45:54]  So Vegas is where.
[00:45:57]  I can take you to Vegas in a minute.
[00:45:58]  Okay.
[00:45:59]  We'll be there.
[00:46:00]  We'll be in ahead.
[00:46:01]  We'll be there soon.
[00:46:01]  We're almost there.
[00:46:02]  All right.
[00:46:02]  All right.
[00:46:02]  We're almost there.
[00:46:04]  So.
[00:46:05]  That segues into okay, he's seeing that he can make a lot of money by actually distributing spice to head shops around the country.
[00:46:13]  And they do that.
[00:46:14]  It's a simple process.
[00:46:16]  As far as the raw ingredient, the synthetic cannabinoid, that comes from China.
[00:46:20]  So you can get those kilos.
[00:46:22]  You could order them practically out in the open.
[00:46:25]  You obviously need to, I guess it's word of mouth.
[00:46:28]  You know a guy, someone else who did it.
[00:46:30]  Once you get that connection, you can easily get those kilos.
[00:46:34]  And that's really the main ingredient of spice the synthetic cannabinoid.
[00:46:39]  It's mixed in with acetone.
[00:46:41]  And it's a fairly simple process.
[00:46:43]  I lay it out in the book directly from them and how they made it.
[00:46:47]  Wow.
[00:46:48]  But it really isn't a high tech thing.
[00:46:49]  Talk about Walter White, you don't need a science degree or really any scientific expertise to make this stuff.
[00:46:55]  You just need to get your hands on the raw materials, which are readily available.
[00:46:59]  And so, how do they get in touch with the people in China that were making the synthetic cannabinoids?
[00:47:05]  So, I don't know initially, that was really part of there.

=== Making Spice Without a Science Degree (03:42) ===

[00:47:08]  Just kind of is a guy in China and everyone, not one guy, but that's what year was this again?
[00:47:13]  So, this is now we're into the early 2010s, I would say, when they're at the point of okay, spice is maybe silk for a couple years.
[00:47:22]  I don't know when Silk Road came down, but it was just so available that it wasn't.
[00:47:27]  I don't like, there was never a question of, oh, how do we get in touch with China?
[00:47:30]  I think it's just if you're of half of a mind to do it, then like anything else in a drug business or any business, it's word of mouth, right?
[00:47:39]  Right.
[00:47:39]  They're in distribution.
[00:47:40]  And so the exact moment at which they got in touch with someone, I couldn't say, but that I don't think that was really a roadblock like other things where like it might have been harder to get one of the products, the materials that were legal.
[00:47:52]  Than the synthetic cannabinoids, right?
[00:47:55]  And so, almost getting towards Vegas now, they're starting to distribute to head shops around the country and they start the new business to do this called ZenSense.
[00:48:04]  And that was what Burton and Ben started together.
[00:48:07]  Burton was the majority owner of it.
[00:48:10]  And so, they start hiring workers to bag the stuff up.
[00:48:14]  They have salespeople that are cold calling head shops around the country.
[00:48:18]  And again, sort of in the way that Burton had the stuff flying off the shelves.
[00:48:23]  At the shack when he was initially selling spice and couldn't keep up with the demand, that was their problem here too.
[00:48:29]  They couldn't make the spice quickly enough to get it out to people across the country.
[00:48:33]  That's where Vegas comes in because Pensacola is this swampier area.
[00:48:37]  It would take too long for the spice to dry.
[00:48:40]  And so Burton, again, being this poker player, his mind is trained on Vegas where he had played in the World Series there and spent some time.
[00:48:48]  They set up a warehouse in Vegas where that's where they'll actually make the spice.
[00:48:53]  Ship it back to Pensacola.
[00:48:55]  And it actually made enough business sense for them to do that.
[00:48:59]  Despite the extra time and expense of doing that there, the fact that they could pump out the stuff more quickly was a good business decision for them.
[00:49:06]  Interesting.
[00:49:07]  These guys seemed like they were the perfect combo.
[00:49:10]  One guy laying back, one guy sort of like hyper aggressive, almost autistic personality.
[00:49:15]  Well, yeah.
[00:49:16]  And autistic is a way that Burton would describe himself too.
[00:49:19]  That's another feature of his personality.
[00:49:22]  And this is something that I think he discovered later.
[00:49:25]  In life, but that's.
[00:49:27]  Oh, he means he actually got diagnosed with autism.
[00:49:30]  That's how he talks about himself.
[00:49:32]  Oh, it's just he talks about it.
[00:49:34]  I couldn't say clinically, not clinically, one way or the other, but that's a part of who he is, I would say.
[00:49:41]  I think it was he was always had this efficiency obsession and something that looking back, that's what it was all along.
[00:49:51]  And so that's part of his drive, too, I think.
[00:49:54]  And so I'm certainly not an expert at anything like that.
[00:49:57]  And so I.
[00:49:57]  I hesitate to kind of psychoanalyze or medically diagnose anyone, but that's not coming from me.
[00:50:04]  That's from him and my conversations with him now.
[00:50:08]  And so that's 100% accurate for what he would say.
[00:50:11]  Where is he at now?
[00:50:13]  So right now is actually kind of an interesting question.
[00:50:16]  So most recently, they've been in Talladega, Alabama.
[00:50:21]  Recently, Ben moved to a lower security facility in Louisiana, kind of further out.
[00:50:28]  From the city there.
[00:50:30]  And Burton is probably on his way there soon to also go in that lower level facility.
[00:50:38]  And when you had all these meetings with them, they were all in person?
[00:50:41]  The only time I've been in the same room with them was for one of their trials in Las Vegas.
[00:50:46]  Over the years, we've spent hours because I've only known them since they've been locked up.

=== Nationwide Raids and Relocation (03:15) ===

[00:50:51]  That's the thing about this story I came into it.
[00:50:53]  I got that email from Lloyd Snook, Burton's lawyer, in 2018.
[00:50:58]  And so they had already been tried twice.
[00:51:02]  So they've, we haven't talked about this part yet because we haven't gotten there, but they've gone to trial three times already.
[00:51:09]  Two of those trials had already happened before I even knew about them, which is what was leading Lloyd to reach out to me because he wanted me to look into it.
[00:51:19]  Right about their appeal.
[00:51:21]  So, these guys have a, would you say they have a pretty good chance of getting out of this?
[00:51:26]  I think they have a chance, which is more than you can say for probably most people who are appealing criminal convictions just because of the way the law is set up in general, not just the Analog Act, but just when I say the law, I mean capital T, capital L.
[00:51:42]  Okay, so where were we with the story?
[00:51:44]  Vegas, they could be in Vegas.
[00:51:46]  We're getting the distribution business off the ground.
[00:51:49]  So, they're in Vegas, and so having that warehouse in Vegas and making that Decision to again take it to the next level, get that extra edge, yeah, is what winds up taking them down.
[00:52:02]  Again, we could point to a million things for what's the thing taking them down, but very proximately, that's what winds up getting raided as far as this nationwide raid in 2012 called Operation Log Jam.
[00:52:14]  Operation Log Jam, yes, yeah.
[00:52:16]  So, and that took down a few places around here, too.
[00:52:19]  It was really all over the country.
[00:52:22]  It was the first nationwide raid for synthetic drugs.
[00:52:26]  Wow.
[00:52:27]  Oh, wow.
[00:52:28]  There's a map right there that shows, what is that, where all the raids were?
[00:52:32]  Yeah, it was awesome.
[00:52:32]  So if you zoom in on that map, is that so?
[00:52:35]  Did these raids go down like simultaneously on all these locations?
[00:52:39]  Exactly.
[00:52:40]  Whoa.
[00:52:40]  And it wasn't like all taking, it wasn't like we're taking down one cartel.
[00:52:44]  It was every sort of business like this that they could get their hands on.
[00:52:48]  A couple of places in, actually, a lot of places right around here in Tampa.
[00:52:53]  Yeah, a lot of Florida.
[00:52:54]  Fort Lauderdale, Los Angeles, Vegas, lots of like the New York area.
[00:53:02]  Wow.
[00:53:05]  So the southern very tip border of Texas and Mexico.
[00:53:13]  No way.
[00:53:15]  So what ramped up this operation logjam?
[00:53:19]  Like, how did the DEA sort of become aware that this was a big problem and how did it get on their radar to the point where they had to implement this huge.
[00:53:34]  Nationwide operation.
[00:53:36]  Like anything else, it's when it's becoming an issue in the streets or when they see it as one.
[00:53:41]  Remember, we were talking about bath salts and spice.
[00:53:43]  So, bath salts were part of Operation Logjam, too.
[00:53:46]  So, you have all these instances of people freaking out on the street, hitting emergency rooms because they smoke this stuff and didn't know what it is and they're losing their minds.
[00:53:56]  And so, it lent itself to a lot of pretty extreme headlines.
[00:54:01]  And so, it was becoming an issue in the consciousness.
[00:54:03]  And so, it built up.
[00:54:04]  To something where they felt they had to take it down.

=== Operation Logjam and Extreme Headlines (15:29) ===

[00:54:07]  But it's very easy in a way.
[00:54:08]  There was nothing they had to really infiltrate, if you think about it, because these things were storefronts.
[00:54:14]  You didn't need an undercover necessarily to go in and buy stuff that anyone could walk in and buy.
[00:54:23]  You could walk in in a police uniform and buy the stuff.
[00:54:26]  They might look at you a little weird, but you could do it just like you could sell to anyone else.
[00:54:31]  So it wasn't difficult in that sense.
[00:54:33]  When you think of a law enforcement operation, it was just a lot of it.
[00:54:37]  And now some of them might have been less. upfront than others.
[00:54:40]  And so, just as a general description to say, this was different in the way that everything under the Analog Act is different.
[00:54:47]  So, they were arrested?
[00:54:49]  Not exactly.
[00:54:50]  Not at all, actually.
[00:54:52]  So, let's go to Vegas in the time of Operation Logjam.
[00:54:57]  Burton and Ben weren't even actually out there.
[00:54:59]  They actually, this is where we can maybe introduce a third character into this, who is Ryan Eaton.
[00:55:04]  And Ryan is much younger than Burton and Ben.
[00:55:08]  Ryan's closer to our age, maybe a little older.
[00:55:12]  And so, He was just basically a regular worker at Zen Sense.
[00:55:16]  He was putting stickers on bags.
[00:55:19]  He was working in Pensacola.
[00:55:20]  And so, to make a long story short, which again could have been its own chapter or book itself, Ryan winds up being the guy that they have out there working the warehouse in Vegas, making the spice there.
[00:55:34]  He gets instructions from them of how to do it.
[00:55:37]  Ryan doesn't have any sort of science degree.
[00:55:40]  You don't need one.
[00:55:40]  Any of us could have been sent out and do it.
[00:55:44]  Manual labor basically, and he's whipping up these batches, he's sending them out back east to Pensacola to Ben.
[00:55:52]  He's in touch with him, he's living in a house with random guys, they have a pool.
[00:55:57]  He's kind of just living a life out there, and I think it got sort of lonely for him and even boring, which he probably would have preferred to what wound up happening.
[00:56:06]  So he goes to the warehouse one day, and this is happening in a very, very short time period, by the way.
[00:56:11]  As I'm describing this, you might think of an operation that's getting built up over the course of months or even years.
[00:56:17]  But he was out there for weeks, really.
[00:56:20]  We're not talking months or even years.
[00:56:22]  But they're making a lot of money in that time period, these batches that are getting sent out there.
[00:56:26]  So Ryan goes to the warehouse one day and he sees flashing lights coming in behind him.
[00:56:31]  And it's the DEA and it's the day of Operation Logjam because neighbors of the warehouse got suspicious of Ryan there.
[00:56:42]  He's this big burly guy who's going in and he has like dust on him and it's not clear what he's doing.
[00:56:49]  They actually thought that he was growing weed.
[00:56:51]  Again, going back to Cannabis prohibition, and this is what made the neighbors suspicious.
[00:56:56]  They wind up calling the cops.
[00:56:57]  The cops wind up doing an operation, I guess you could call it.
[00:57:01]  Again, he wasn't hiding exactly, even if he didn't have a sign saying, Hey, I'm making spice in here.
[00:57:06]  And so they wind up getting put on the list of places that are getting taken down in Operation Logjam.
[00:57:12]  So it's actually just Ryan, and he winds up being let go that day.
[00:57:17]  Burton and Ben aren't arrested that day.
[00:57:19]  It's actually almost the opposite of being arrested.
[00:57:22]  When Burton hears, That Ryan was picked up by the cops, by the DEA, and that the Vegas warehouse was raided.
[00:57:29]  Burton reaches out to law enforcement in Pensacola to a cop he knew there who would borrow bongs from the psychedelic shack to do dare presentations in the area.
[00:57:39]  Again, file that under Burton open with law enforcement.
[00:57:43]  So Burton says, Hey, I want to get in touch with whoever is in charge of the DEA here.
[00:57:46]  He gets on the phone that night, Burton does, with a DEA agent, Claude Cozy.
[00:57:52]  And Burton winds up inviting Cozy to the Pensacola facility.
[00:57:57]  To get a tour of it the next morning, where Cozy goes, he sees Zensen's workers bagging up stuff.
[00:58:03]  He sees the safe where they're keeping the product and he walks in.
[00:58:08]  Burton gives him samples of the product, including one called Bizarro, which is part of where I get the title for the book.
[00:58:16]  And Cozy goes off and he's on his way.
[00:58:18]  He doesn't arrest them because, again, this isn't, if this was cocaine, Burton would not have been able to make that call.
[00:58:26]  You wouldn't be able to arrest.
[00:58:28]  To invite a law enforcement officer into your operation, at least not if you know that they're a cop.
[00:58:34]  But because of the Analog Act, Cozy couldn't take them down that day.
[00:58:38]  Cozy actually really wanted to.
[00:58:39]  It wasn't like he was liking these guys.
[00:58:42]  Cozy actually hates Burton Ritchie.
[00:58:45]  Really?
[00:58:45]  He hates him, yeah.
[00:58:47]  That was one of the more memorable conversations I've had for this talking to Claude Cozy, who, to his credit, is.
[00:58:53]  Where's the hate come from?
[00:58:56]  I think they're really just opposite personalities.
[00:58:59]  Cozy is the ultimate lawman.
[00:59:01]  Burton's more of the freewheeling head shop owner in the area.
[00:59:05]  And so Cozy is the arrest the drug guy during the day, 15 Budweiser's at night.
[00:59:12]  It's cultural, right?
[00:59:13]  Burton is, I don't know if he's the opposite of that, but he's something very different from that.
[00:59:18]  And so Burton had no idea who Cozy was, but Cozy knew who Burton was because Burton was kind of a small celebrity in the area that TV commercials for the psychedelic shack, which I haven't been able to get my hands on.
[00:59:32]  I really want to.
[00:59:33]  I still want to be able to see one of those, but I've talked to people who've seen them.
[00:59:37]  They're not online anywhere, huh?
[00:59:38]  No, I got in touch with the local TV person there and they regarded me with some suspicion, but something that I haven't crossed off.
[00:59:46]  My list as far as giving up on it, but something I would like to see.
[00:59:49]  Interesting.
[00:59:50]  So he was getting out ahead of it, inviting the DEA to his facility, showing them, like, hey, this is what we're doing.
[00:59:55]  I want to make sure everything's kosher here.
[00:59:58]  Yeah.
[00:59:58]  And again, look, I don't want to editorialize it, right?
[01:00:01]  Because there's a different way to look at it if you want to.
[01:00:05]  You could call it getting ahead of it.
[01:00:06]  You could call it making the best of it, right?
[01:00:09]  I mean, getting ahead of it would have been calling him up before Logjam if you really, really want to go there, right?
[01:00:17]  But it's.
[01:00:19]  Again, just to look at that other side of it, he was doing something that frankly would be insane to do with anything that was obviously an illegal drug.
[01:00:26]  Because another thing I should say about their operation is well, how did they know what was in it, right?
[01:00:31]  You might be thinking, okay, they're ordering this stuff from China.
[01:00:36]  How do they have the confidence, even assuming the worst intentions on their part?
[01:00:43]  How do you have the confidence to invite a DEA agent into your facility where you have people bagging stuff up that gets people high that colloquially?
[01:00:52]  Anyone would regard it as a drug, whether that's a good thing, a bad thing, an illegal thing.
[01:00:56]  Yeah, that's like something out of a movie.
[01:00:58]  The reason it had that confidence is because they were third party lab testing all of the chemicals that they got from China multiple times during the process.
[01:01:09]  First, when they got the initial shipment to see what it was, and again, actually testing samples of the specific products they were going to sell before they went out to shops.
[01:01:18]  So for something that was happening in a gray market, whatever there is to say about it, Morally, whatever.
[01:01:25]  It's just an incredible amount of quality control that's put into that that you just don't see in any other sort of business that's that way.
[01:01:35]  And so that part was just really incredible because he was able to give him a lab report.
[01:01:38]  He was able to show him, Burton was able to hand Cozy the product and say, I know this is XLR11.
[01:01:44]  And that was interesting because I remember you mentioned that chemical specifically before.
[01:01:49]  I know this is it because that's what my lab test showed and that is what the product that Burton handed Cozy wound up showing when the DEA.
[01:01:57]  Lab tests came back too.
[01:01:58]  And they were not, this is back in 2012.
[01:02:01]  No one was arrested for years after this.
[01:02:07]  And so, what was the conclusion of that meeting when the DEA agent went in there, Cozy went in there, and he left eventually?
[01:02:15]  That was really it.
[01:02:16]  They weren't getting arrested.
[01:02:18]  They were sort of, Cozy was, well, I'll go and get this stuff tested at the lab.
[01:02:22]  It takes a long time to get stuff tested at the DEA labs.
[01:02:25]  That was a part of this.
[01:02:27]  So, but it wasn't like Cozy had given up because remember, Cozy still wanted to take Burton down.
[01:02:32]  There was just this issue of the Analog Act.
[01:02:33]  Cozy was actually complaining about the federal prosecutor in the area saying he didn't have the balls to use the Analog Act.
[01:02:40]  Those are the words that Cozy used to me to describe the issue because, again, this just shows how much discretion is baked into this.
[01:02:47]  Because in any case, a prosecutor has some level of discretion whether to bring a case, even if someone clearly is breaking the law.
[01:02:54]  But here is where that really magnifies that issue because the law being so nebulous is an issue for everybody.
[01:03:01]  Even if you're a prosecutor who thinks someone is doing something bad, You're like, well, wait, how can I prove this beyond a reasonable doubt?
[01:03:08]  And so that was clearly the issue that this prosecutor is having, at least as Cozy saw it.
[01:03:14]  And so Cozy stuck in this situation as he sees it, where, okay, I have this guy.
[01:03:18]  He's a freaking drug dealer, but I can't arrest him because of the Analog Act.
[01:03:22]  So you have him complaining about it from a law enforcement perspective, as not because it's too vague in a way that, oh, no, it's a due process problem.
[01:03:31]  This is too vague in that it's not letting me arrest a bad guy.
[01:03:35]  But wait.
[01:03:36]  The Analog Act would let him prosecute that guy, though, no?
[01:03:42]  It would let him try.
[01:03:43]  It wouldn't automatically lead to a conviction.
[01:03:46]  Right, but the Analog Act isn't the reason he could not arrest him, right?
[01:03:51]  It kind of was at the time anyway, because he would have needed a prosecutor to be on board.
[01:03:57]  So it was because of the prosecutor?
[01:04:00]  Yeah, right.
[01:04:02]  So at the time, if a prosecutor there had said, yeah, let's take him down for the Analog Act, This might have been a different story because they wound up getting charged in multiple districts, but none of them was Florida.
[01:04:13]  Interesting.
[01:04:14]  Excuse me.
[01:04:15]  So, as far as how the meeting leaves off, Cozy goes on with the drugs, but it's not like he leaves because he still wants to take Burton down.
[01:04:23]  He winds up coming back to the facility when there were fire marshals, wound up doing an inspection there a couple months later.
[01:04:30]  He's basically trying to put heat on them, and they're still feeling that heat.
[01:04:34]  Even though they're not being arrested, they're starting to think we need to get out of this business just because even if we're not being arrested, It's just not good having law enforcement basically breathing down their necks.
[01:04:46]  Even if they're convinced they didn't break the law, it's just not really a sustainable way of life.
[01:04:49]  So they start to make moves to extract themselves from the business and start looking towards other things in the summer of 2012 into the winter of 2013 and looking to sell the business.
[01:05:01]  But was there ever a conversation with Cozy or anybody at the DEA or law enforcement?
[01:05:06]  Was there ever any sort of conversation to the effect of, like, hey, What's your opinion on this?
[01:05:13]  Are we good or are we not good?
[01:05:17]  No.
[01:05:17]  And that's very interesting because I don't think that was seen as a possible thing to do.
[01:05:23]  I wound up doing something like that years later after I found out about the story in 2019.
[01:05:31]  I think it was I did this because it's not like the DEA, if you go to their website, has a sign that says, first of all, it's possible people don't even know what the Analog Act is.
[01:05:39]  And there's the general line of, well, ignorance of the law is no excuse, right?
[01:05:43]  That's something, even if you're not a lawyer, you kind of have that in the back.
[01:05:45]  Of your head.
[01:05:45]  It's like tough stuff.
[01:05:47]  You broke the law.
[01:05:48]  The Analog Act, that's not 100% true when it comes to the Analog Act because you still need to show that a person had the criminal intent to distribute this thing that was substantially similar to a scheduled drug.
[01:06:02]  So it wasn't irrelevant if someone didn't know of the Analog Act.
[01:06:07]  To put it a different way, it would be good proof in an analog case if a defendant knows about the Analog Act because that could show maybe that they were taking some sort of steps to circumvent it.
[01:06:18]  But to say, No, they didn't affirmatively reach out to the DEA.
[01:06:22]  They did get in touch with lawyers who advised them that, for example, and there was a printout where it comes to a chemical like XLR11.
[01:06:31]  They got a legal opinion saying that it wasn't substantially similar to a scheduled drug.
[01:06:37]  This was after the fact, by the way.
[01:06:39]  And that's important, the timing.
[01:06:41]  It wasn't something, as far as I know, that they did ahead of time, because that could have put them probably in a better legal situation if they had done that going into it.
[01:06:52]  But as far as the proof that I've seen, I've only seen a letter that they got after the raid from a lawyer saying that this substance is not substantially similar.
[01:07:03]  Still remarkable in any event.
[01:07:04]  Not something you'd be able to do in a cocaine enterprise.
[01:07:07]  But anyway, bottom line is after Logjam, they're not getting arrested, but Cozy's breathing down their neck.
[01:07:12]  They don't exactly shut it down because if they had just shut it down, we might not be having this conversation, or at least not in this way.
[01:07:20]  They aren't ready to completely walk away because that would be a significant financial loss to them at that point.
[01:07:27]  They wind up selling the business.
[01:07:29]  There's a technical business term for what happened.
[01:07:31]  They didn't technically sell it, they sold the assets.
[01:07:34]  That's another remarkable thing about the story because they actually had a contract.
[01:07:38]  That they entered into to sell this to another head shop entrepreneur, this guy named Tony Nottoli, who's also in recovery, too.
[01:07:47]  Everyone in this story is in recovery somehow or has some sort of drug issue or is in law enforcement or both.
[01:07:55]  Burton and Tony, they wind up really being at loggerheads and basically seemed like they hate each other, but they were in too deep.
[01:08:06]  And to make a long story short, they wind up selling the company to Tony.
[01:08:11]  Toward the end of 2012, beginning of 2013, and they're out of the business.
[01:08:16]  That's a very summary way of putting that part, which I detail some of the crazier back and forth of in Bizarro.
[01:08:23]  But busted in 2012, busted but not arrested, then get out of the business.
[01:08:28]  Then they move on to totally different lives in film and entertainment and actually start a film production company and wind up working with real celebrities, just in another amazing aspect of it.
[01:08:41]  Interesting.
[01:08:42]  And then how long after that did they eventually get arrested?
[01:08:46]  Three years.
[01:08:47]  So it was 2015 that they wound up being charged, three years after Logjam.
[01:08:52]  And then Cozy was behind this?
[01:08:55]  Well, that's kind of an interesting question because they weren't actually charged in Florida.
[01:09:00]  So they wound up getting charged in three different states Virginia, Nevada, and Alabama.
[01:09:07]  Alabama is the least important, but I can explain what they all are.
[01:09:10]  Virginia, because that was one of the areas that they distributed their product to.
[01:09:14]  They distributed all across the country, so they conceivably could have been charged probably in almost every state.
[01:09:21]  Nevada, the site of the warehouse, and Alabama, that's where they had moved the call center to after XLR 11 became illegal on the state level.
[01:09:30]  That was more closer to the time where they were selling the business to Tony Nottoli.
[01:09:35]  They've never been tried in Alabama.

=== Forensic Sciences vs Random Prosecutors (06:26) ===

[01:09:37]  To date, they've been tried twice in Virginia and once in Nevada.
[01:09:41]  Nevada was the most recent one.
[01:09:43]  Where are we at with all that?
[01:09:45]  Sure.
[01:09:45]  So.
[01:09:46]  With Virginia, the first trial, again, the Analog Act was a direct issue.
[01:09:51]  It was a hung jury because the jury couldn't figure out the Analog Act.
[01:09:56]  They specifically told the judge, we can't make sense of this substantial similarity standard.
[01:10:01]  And so it was a hung jury.
[01:10:02]  The government went right back into it, tried them again.
[01:10:05]  Again, the jury was saying they were having trouble reaching a verdict, but wound up convicting them after the judge told them, basically, you need to make a decision one way or the other.
[01:10:16]  Then they won.
[01:10:18]  That case.
[01:10:19]  On appeal, the Virginia conviction.
[01:10:22]  The reason they want it is something that's arguably the most insane thing about this story, which we haven't even talked about yet, which is Arthur Barrier.
[01:10:30]  Okay.
[01:10:31]  So I can talk about him now if you want.
[01:10:33]  Yeah.
[01:10:34]  So if you're looking at this, you might have a question of okay, the Analog Act theoretically outlaws an infinite number of substances, right?
[01:10:45]  Prosecutors aren't scientists.
[01:10:47]  How do they decide what is substantially similar to a scheduled drug?
[01:10:52]  Well, It turns out, and I've learned a lot about this for the book, is that internally within the DEA, they have a process where they decide what they're willing to support as substantially similar or not, whether they're willing to provide that expert testimony.
[01:11:08]  And that makes sense.
[01:11:10]  Obviously, you can have the position that none of this should be happening at all, but if it is, it makes sense to have some kind of scientific backing instead of just random prosecutors making scientific decisions about what looks closer to a chemical or another.
[01:11:24]  That would just be kind of a weird situation.
[01:11:26]  They would need expert testimony anyway.
[01:11:28]  So, within the DEA, they would have this small group of chemists within a group called Diversion Control.
[01:11:35]  They were more of the policy arm of the DEA in a way, as distinct from another part called Forensic Sciences.
[01:11:43]  And that becomes important because Forensic Sciences is where Arthur Barrier worked.
[01:11:47]  And so, as part of the process for reviewing a potential analog, you get a chemical off the street, you have a prosecutor saying, Hey, can we charge this?
[01:11:55]  That goes to Diversion Control.
[01:11:57]  And they look at it and say, Hmm, is this.
[01:12:00]  Close enough or not?
[01:12:01]  Is it substantially similar?
[01:12:02]  They say yes or no.
[01:12:03]  If they do think it is, then it'll go to forensic sciences, which are more of the scientists who are actually in the lab, so to speak.
[01:12:11]  And that's where Barrier was.
[01:12:12]  And Barrier, he was tasked with essentially checking diversion control's homework and giving his opinion on it.
[01:12:19]  And he would usually agree with them, but he didn't always.
[01:12:23]  And when he disagreed with them, it became a problem because now you have someone who's essentially gumming up the works of a potential prosecution.
[01:12:32]  And The DEA was not forthcoming with this difference of opinion within the DEA, which, if you're a defendant charged with selling a substance, now just think about this.
[01:12:44]  You're charged with selling a certain substance as an analog, it's not a scheduled drug, and you're convicted for it.
[01:12:51]  Now imagine you learn after the fact that it turns out a top DEA chemist actually agreed with you.
[01:12:59]  And so then you could say, well, how am I supposed to know?
[01:13:03]  That this drug is illegal if one of the DEA's own chemists doesn't think it is.
[01:13:08]  At the very least, you would think you should have that evidence available to you to present to a jury, right?
[01:13:14]  So that did not happen in Burton and Ben's case because once word of this internal dissent by way of Arthur Barrier kind of started making its way into the water, because once you're a defendant in these cases, that's like a golden ticket.
[01:13:28]  You have someone within the DEA saying, I don't think you're guilty.
[01:13:33]  That's not an overstatement to say because if it's not substantially similar, Then it's not a drug.
[01:13:38]  There's no case.
[01:13:39]  And so, obviously, if you're charged, you want to put that EEA chemist on the stand or even have the threat of putting him on the stand because if you have that, maybe the prosecution won't even go forward.
[01:13:50]  But for very technical legal reasons, the judge wound up blocking Arthur Barrier from being able to testify at Burton and Ben's trial.
[01:13:59]  So they were convicted without the jury knowing about that internal dissent that Arthur Barrier essentially agreed that they were not guilty.
[01:14:09]  Why do you think the judge blocked that?
[01:14:11]  Oh, well, I can explain the actual reason for it.
[01:14:14]  There's something called the deliberative process privilege, and it's something that applies throughout the government.
[01:14:19]  Basically, the idea is that in order to have honest, robust internal discussions within the government, you don't want to be able to have those discussions being subpoenaed and being talked about in open court.
[01:14:35]  So it's essentially on those grounds that the judge said that the government had the right to not offer their employee to testify in court.
[01:14:43]  Now, that's the rationale.
[01:14:46]  But couldn't the judge have let that happen, though, anyways?
[01:14:49]  But he didn't.
[01:14:51]  And the appeals court thought that that was wrong, basically for the common sense reason that anyone listening to this would reach.
[01:14:59]  That's what the appeals court said.
[01:15:00]  And this was an appeals court panel that was not made up of bleeding heart liberal judges.
[01:15:05]  They unanimously and pretty quickly realized that it was ridiculous not to let Arthur Barrier testify.
[01:15:12]  And so their Virginia conviction was reversed.
[01:15:15]  And this is in 2017.
[01:15:16]  So now, without him even testifying.
[01:15:19]  Exactly.
[01:15:20]  Without him even testifying, reversed, but that doesn't mean it's gone for good.
[01:15:23]  It just means they're then on track for a potential third trial.
[01:15:27]  So it's not, it's only so much of a prize.
[01:15:29]  It's you won, but you're not out of the woods yet.
[01:15:32]  It's you get a new trial with the possible benefit of this testimony.
[01:15:35]  So the timing of this is important because that's in 2017 now.
[01:15:42]  Okay.
[01:15:42]  And so it's around this time that Arthur Barrier winds up actually testifying in another case.
[01:15:52]  And getting an acquittal in an analog case for someone totally unrelated to Burton and Ben.
[01:15:58]  Yeah.
[01:15:59]  What was the substance in question in that case?
[01:16:01]  It was another spice case.

=== Human Body Receptors and Legal Outcomes (08:29) ===

[01:16:03]  It was either XLR 11 or a similar one because the thing is, so XLR 11 was charged in a lot of these cases, and this kind of goes to how squirrely this all is because there was another substance called UR 144, which was basically identical to XLR 11.
[01:16:20]  And I know it's weird to use that kind of term virtually identical, and we're talking about substantially similar, but it's, There's no question that they're basically the same thing.
[01:16:28]  Defense, government, everyone agrees with that.
[01:16:30]  But I say that because so UR 144 was one of the substances that was the subject of this internal DEA review, and it was one that Arthur Barrier disagreed on.
[01:16:41]  And so after he disagreed on that, then it was time for XLR 11 to be reviewed.
[01:16:46]  They didn't even ask Arthur Barrier his opinion because obviously they knew what it would be.
[01:16:52]  They knew what it would be, and this is my observation and opinion.
[01:16:55]  They did not want to create a further paper trail.
[01:16:58]  Or have a bigger issue of this information potentially getting to the defense, even though you're basically able to lay it out in a common sense way, but you can technically stand up and say, Oh, he didn't review it, so we actually technically don't know what he thought about it.
[01:17:13]  And they kind of tried to play that a little bit when it came up.
[01:17:16]  Now, there was something, there was, again, I'm trying to recall what you and Hamilton were discussing, but there was some part of this law that basically they were able to determine.
[01:17:29]  The legality of the drug based on not necessarily like it could either be they had the option of making it substantially similar chemically, or they could judge it depending on which sort of like receptors it affected in the human body.
[01:17:53]  Right.
[01:17:54]  I think that was a different that might have been a different law, not necessarily the analog act.
[01:18:00]  I think he was talking about there was discussion about.
[01:18:02]  Trying to criminalize something based on its interaction with the receptors.
[01:18:06]  Right.
[01:18:07]  Yeah.
[01:18:07]  Maybe that was another law that you guys were talking about, right?
[01:18:10]  Right, like trying to develop a law.
[01:18:12]  So, if there's one drug that's illegal that has a certain effect on the body, there could be a completely separate compound or drug or whatever it might be, even an herb, probably, that affects the human body the same way or causes, whether it be psychologically or whatever.
[01:18:34]  And they could classify it as that other drug just because it has the same effect on the human body.
[01:18:42]  But I'm not sure if that law ever went anywhere or if it had legs.
[01:18:47]  Yeah, that was one that hasn't really, at least hasn't come up in the context that I've seen.
[01:18:51]  I think that might have just been something that was being discussed as a possibility, but might not have come up exactly in that way.
[01:18:58]  But I think maybe that kind of gets to the problem of we're talking about just these receptors that are in our body.
[01:19:04]  And so it's what are you actually outlawing?
[01:19:07]  You're like outlawing these things that are within ourselves in a way.
[01:19:11]  And it gets to that kind of extreme level.
[01:19:13]  Is that kind of what you're getting at?
[01:19:14]  Yeah, it's like they're.
[01:19:17]  Like, do you want to outlaw the tool or do you want to outlaw the effect on the human body?
[01:19:27]  You know, they want to outlaw people getting high and people making money off of it.
[01:19:31]  I think it's as simple as that.
[01:19:33]  And once you understand that, it all makes sense.
[01:19:36]  Doesn't mean it's all correct or it's all right, but I think it makes sense as far as understanding what's happening here.
[01:19:42]  Now, what sort of, as far as like the legality in the case was concerned, like what sort of evidence did they have that this XLR11 or the other chemical that was, um, Virtually identical to it, whatever evidence they have that it was dangerous to humans.
[01:19:58]  So that really wasn't an issue.
[01:19:59]  Like they don't have to prove that as far as at trial.
[01:20:03]  It was just a question of is that the substance or not?
[01:20:09]  It's not, there's never a question of the dangerousness of the drug.
[01:20:12]  Now that's kind of maybe a separate issue when you get into the actual scheduling of it, where you can say, okay, in order to actually schedule it as a Schedule I or II drug, certainly as a Schedule I drug, you would need to.
[01:20:24]  Be able to show some of that evidence.
[01:20:26]  And there are probably some issues there.
[01:20:28]  But the prosecution definitely did, I think, try and at least get into the fact of, oh, this stuff is dangerous, even probably to a degree that wasn't even relevant.
[01:20:36]  I think that was something that was undergirding all of this and saying, this stuff is not weed.
[01:20:41]  This is stuff that's actually dangerous.
[01:20:42]  Of course, the absurd part of that is this all happened only because weed was illegal.
[01:20:47]  Right, right.
[01:20:48]  Because there were at least a handful of cases where people had died after they had used these.
[01:20:56]  Substances like K2 or spice.
[01:20:58]  But I don't think it was proven that that was the actual reason.
[01:21:02]  They could have been doing many other things, or they were certain types of people that were involved in all kinds of things.
[01:21:11]  And there were other chemicals in their body.
[01:21:13]  And there wasn't actually proof that the spice or the K2 was the cause of death.
[01:21:17]  Right.
[01:21:17]  That was a bit of an issue that came up here, too, because there were a couple of civil suits against Burton and Ben and the company for people who died after smoking their products.
[01:21:25]  That was at least the allegation.
[01:21:27]  But there were issues about, Causation.
[01:21:29]  The cases wound up settling.
[01:21:31]  We don't know actually what the full proof would have showed either way, but in all of the spice cases, or a lot of them anyway, that I've seen, there are these issues of it seems pretty rare that you're just going to die straight up from smoking it if you're just sitting in a room.
[01:21:46]  It's more of like you'll smoke it and then you'll do something and then something will happen.
[01:21:52]  In one of the cases that's talked about here, the Sybil case, this kid really wound up losing control and wound up getting tased and.
[01:22:00]  Basically, beaten by the cops, and he died after that.
[01:22:03]  So, it's kind of what was the reason for the death?
[01:22:07]  It gets a little gnarly when you're trying to point it directly on the drug where you had these intervening circumstances.
[01:22:13]  But these cases will end up settling.
[01:22:15]  Right.
[01:22:16]  And that's another issue with that, too, is you don't know what you're getting when you're dealing with these underground chemists that are making it.
[01:22:23]  You don't know the potency.
[01:22:24]  You don't know how much to take.
[01:22:25]  No, there's no guidelines or anything like that.
[01:22:27]  You're sort of just like shooting in the dark.
[01:22:30]  Exactly.
[01:22:31]  Maybe there are some people who are more educated about it.
[01:22:34]  But I mean, that's the thing with fentanyl, too, right?
[01:22:36]  The thing with fentanyl is you, or with cocaine, rather.
[01:22:39]  When people buy cocaine, they don't know what's in it.
[01:22:42]  That's not like they're buying it from a legitimate licensed pharmacy who has to test it and inspect it or whatever.
[01:22:49]  They're getting it that's cut with all kinds of crazy shit that they don't know what it is, and that could be killing them.
[01:22:54]  And that is what's killing a lot of people with this fentanyl based cocaine.
[01:22:57]  Absolutely.
[01:22:58]  It's, again, we're talking about a function of prohibition.
[01:23:01]  Now, someone might hear what you just said and say, oh, getting cocaine from a licensed distributor, that's nuts, right?
[01:23:07]  Well, I don't know.
[01:23:08]  Is that crazier than what's happening now?
[01:23:11]  I think that cocaine can be.
[01:23:13]  Prescribed.
[01:23:14]  Right.
[01:23:14]  But I'm just saying, in terms of thinking of it actually widely available, like in the way that weed is becoming more so now, someone would scoff at that, maybe in the way that they scoffed at weed being that way 10 years ago.
[01:23:24]  I mean, I think cocaine is seen as something different, but there is this kind of discrimination, right, against different types of drugs.
[01:23:31]  You might think, oh, okay, well, okay, you guys have weed now, but we certainly can't do anything like that with coke.
[01:23:37]  Whereas, as you're pointing out, that's leading to the bigger problems of having an unregulated market because when people are dying, it's not.
[01:23:47]  You might think of, oh, this is someone who was an addict or something like that.
[01:23:52]  Not that that at all makes anything more acceptable, but really what's much more likely is it's an accident.
[01:24:00]  You're going to try and do coke.
[01:24:02]  You're not someone who has a tolerance for something like fentanyl.
[01:24:06]  If you were an addict, you'd probably be less likely to die if you're taking something unexpected, right?
[01:24:11]  And so you have these accidental overdoses where you're getting a product that isn't what you wanted.
[01:24:17]  And so as crazy as it might sound to have.
[01:24:20]  Cocaine in the store.
[01:24:21]  I don't know if that's crazier than the status quo of this unregulated market where you could drop dead by taking the wrong thing that you didn't mean to.

=== Asset Forfeiture Flips the Script (16:05) ===

[01:24:32]  And when did asset forfeiture come into this whole thing?
[01:24:37]  And I know that became sort of like a huge weapon in the arsenal of some of the prosecution stuff.
[01:24:44]  Yeah.
[01:24:44]  So that was in between the logjam and the charges against them in 2015.
[01:24:51]  So From the start, they were dealing with civil asset forfeiture.
[01:24:55]  They were fighting in those proceedings for basically the whole time after Logjam.
[01:25:00]  It wasn't looking like a criminal situation, but the thing there is they were actually fighting the government, which is not something that people usually do.
[01:25:09]  And so there is kind of a question hanging out over this that I have anyway.
[01:25:12]  I always wondered had they gone forward and aggressively tried to settle and pay off the asset forfeiture, could they have effectively paid their way out of a prosecution?
[01:25:23]  I always wonder about it.
[01:25:24]  That.
[01:25:25]  I guess we'll never know, but it's rare to actually fight this because if you don't know about asset forfeiture, it kind of flips what we might think of as this due process concept that we were talking about in terms of having the right to have a government prove charges against you, right?
[01:25:44]  Asset forfeiture kind of flips that on its head because to get your stuff back, you need to show that it wasn't involved in a crime, as opposed to when you're being convicted, you're showing that you were committing a crime, which Makes more sense in the latter situation.
[01:25:58]  The issue in asset forfeiture in their case was to show they weren't breaking the law that still raised the substantial similarity issue.
[01:26:07]  And so, to prove that they weren't breaking the law, they wanted to get Arthur Barrier's testimony.
[01:26:15]  And it actually looked like they were about to get it in a deposition.
[01:26:17]  This is before they were charged.
[01:26:19]  But just as their civil case was looking like it was actually going forward into 2015, that's when they were charged and it was all shelved because then you have the criminal situation, which is more serious.
[01:26:32]  Yeah, I just had a guy on here a couple weeks ago actually who had to deal with that.
[01:26:36]  He was asset forfeiture.
[01:26:37]  Yeah, asset forfeiture.
[01:26:38]  He was a real estate investor and he owned like tons of apartment buildings all over Portland, Oregon.
[01:26:45]  And then on the side, like on the weekends, he was like chartering helicopters that was like shuttling cash and weed from Canada back and forth to the US.
[01:26:57]  Eventually, they ended up seizing like $14 million in property that he owned.
[01:27:03]  Even though that his weed charges were the sum of his marijuana charges was like $2 million, they took $14 million in property of him.
[01:27:12]  And then when he was doing the arbitration hearings, they kept trying to get more and more.
[01:27:17]  They were like, hey, they're like, hey, just give us this building, which is only, you know, it's worth $8 million, but do this and we'll send you back to Spain.
[01:27:26]  And he was like, no.
[01:27:28]  He's like, I already signed the extradition agreement with Spain and I signed it on the tarmac.
[01:27:32]  Like, there's already, it's already a done deal.
[01:27:35]  And they're like, yeah, well, no, it's not.
[01:27:36]  We're not going to send you back.
[01:27:37]  And then he ended up giving up all of his property, like all $14 million, and they still didn't want to send him back to Spain.
[01:27:44]  And I think he had a conversation with the judge in his trial, and he brought up the point.
[01:27:50]  He's like, What was the number that was attached to my case for the marijuana charge?
[01:27:57]  It was like $2 million.
[01:27:58]  How much of my property have you taken?
[01:27:59]  He's like, $14 million.
[01:28:00]  He's like, How does that make sense?
[01:28:02]  He's like, Son, in the United States of America, if you mix one penny with 100 dirty pennies, All 100 of those pennies belong to the United States of America.
[01:28:11]  Exactly.
[01:28:12]  And again, it goes, I think that's still, that's all part of the same culture.
[01:28:18]  And he went home that night and had 15 Budweisers, as was his right to do.
[01:28:22]  Yeah.
[01:28:22]  The cop who said that.
[01:28:23]  Yeah, man.
[01:28:24]  It's just fucking crazy.
[01:28:26]  Yeah, the asset forfeiture thing, I think when people hear about that, they're flipped out even more so than when they hear about some of the criminal cases, even that land people in prison.
[01:28:36]  Just the fact that your stuff can basically be taken and it's on you to.
[01:28:41]  Prove how to get it back.
[01:28:43]  And again, there's the potential of criminal charges for you sort of baked into that.
[01:28:48]  And is there kind of an unstated assumption that you can pay your way out of it?
[01:28:54]  Right.
[01:28:54]  If you can afford it.
[01:28:55]  Right, exactly.
[01:28:56]  Yeah.
[01:28:56]  And this guy was very fortunate to be able to afford to fight it really hard.
[01:28:59]  Exactly.
[01:29:00]  That's the thing here, too.
[01:29:01]  In these analog cases, there's so few of them relatively that I think the government was caught off guard by the degree to which Burton and Ben, from the start, they always wanted to go to trial, whether it was in the civil case or any of their criminal cases.
[01:29:13]  That's very unusual, not just in analog cases, but in any criminal case to really have a person charged who actually wants to go to trial.
[01:29:22]  Very unusual.
[01:29:25]  And that's not necessarily because they're the only people who ever had a winning argument in a case.
[01:29:31]  Basically, the reality is you look at what's the likely result to happen.
[01:29:36]  What's the sentence that's potentially hanging over you?
[01:29:39]  At the end of the day, if you go to trial and you gamble wrong and the 12 random people who are Who couldn't get out of jury duty wind up saying that you have to go to prison now, obviously.
[01:29:51]  And that's a crude way of putting it.
[01:29:53]  It's going the other way, actually.
[01:29:55]  You talk to people who have done jury service, they take it pretty seriously.
[01:29:59]  Often, even if they didn't think they would have liked it, they come out of it thinking, Oh, this is actually something that I feel like was important.
[01:30:04]  But anyway, just to say, there's an element of chance to it, to say the least, and you're risking your life on it for the government.
[01:30:10]  You're risking the case on it.
[01:30:12]  What would have happened to those guys if they would have taken a plea deal?
[01:30:15]  Were they offered a plea deal?
[01:30:18]  I think there were discussions.
[01:30:20]  I don't know if any of it was public, as far as I know.
[01:30:23]  I mean, I'm sure I'll put it like this.
[01:30:29]  I'm sure they could have worked something out, but I don't think that was ever seriously considered because this is kind of an all or nothing thing.
[01:30:38]  It's not, you can't be a little bit guilty of violating the Analog Act.
[01:30:43]  It's sort of an all or nothing proposition.
[01:30:45]  And again, it's very different from cocaine, heroin, any other sort of case.
[01:30:50]  You could say, okay, yeah, I had this stuff, but going back to your earlier example, but I had these circumstances where I was coerced, I was a low level person.
[01:30:59]  Here, there's no question that these guys were selling stuff that was getting people high and they're making a ton of money.
[01:31:05]  There's no question about that.
[01:31:07]  The only question was is the stuff they were selling totally legal or were they kingpins?
[01:31:13]  There's no other situation in law where that can be the case.
[01:31:17]  And that's, I think, what makes this all so fascinating.
[01:31:19]  Right.
[01:31:21]  Just from the outside looking in, that's what makes it terrifying if they're on your end.
[01:31:25]  That's what makes it a daunting case if you're on the government's end.
[01:31:28]  But this is just the point no matter what you think about any of this, this is a unique.
[01:31:32]  Situation within the law, even if it's operating within the normal systems that has all of its existing pathologies that are being glommed onto this already very weird situation.
[01:31:44]  Now, what is the chance?
[01:31:45]  How long do you think this analog act is going to last?
[01:31:47]  Do you think there's any chance of it getting taken down?
[01:31:51]  There's a chance.
[01:31:52]  I just have no reason to expect it to because it's not like it costs the government anything to keep it on the books, right?
[01:31:57]  And so it's not like it's burning a hole in their pocket, even if they're not really using it.
[01:32:02]  They've definitely moved even further away from it, I think, in recent years.
[01:32:06]  Maybe.
[01:32:06]  Probably not having zero to do with their fight against Burton and Ben, which is still ongoing, which has been kind of a tough road for them, even though they won the most recent battle.
[01:32:17]  And at some point, I can kind of set the latest scene of where they're at in their case.
[01:32:22]  But I have no reason to think it's going away, even if they're not using it, because they can keep as many cars in that garage as they wanted to.
[01:32:32]  It's an unlimited amount of space in the old law books.
[01:32:35]  Yeah.
[01:32:36]  And I'm sure that'd be a big downside.
[01:32:38]  That law did go away.
[01:32:40]  I'm sure a lot of the stuff would sort of ramp back up, maybe.
[01:32:43]  I don't know.
[01:32:44]  Maybe.
[01:32:46]  It's hard to say.
[01:32:47]  I think if you're the government, it's a why not.
[01:32:49]  Even if we don't use it, we could always take it out.
[01:32:51]  I think it's something that its main use might even be less so in the prosecutions in which it's been used, but as kind of a almost a scare tactic or like a ghost or a boogeyman that's hiding under the bed of anyone who's going to be.
[01:33:10]  Experimenting with substances, always in the back of your mind, you're worried that the Analog Act could be used against you.
[01:33:16]  And there's no way to know ahead of time for sure until it either does or doesn't happen.
[01:33:20]  So I think for the government, it's almost most useful even when it's not being used.
[01:33:25]  But just given how expansive and, as we've said, theoretically unlimited it is, that's really in its value as something that maybe we'll break this thing out sometime.
[01:33:37]  Maybe we'll never use it again.
[01:33:38]  Maybe we'll use it against you.
[01:33:40]  I don't know.
[01:33:40]  Right, right.
[01:33:41]  So, what is the current state of their appeal?
[01:33:45]  So, I mentioned the two Virginia cases, and I hope I got the timeline, the specific years right.
[01:33:51]  I know the timeline was right.
[01:33:52]  They were tried first twice in Virginia.
[01:33:54]  There was first a hung jury, then they were convicted.
[01:33:57]  There were actually a couple of back and forths in their appeals from their conviction, but bottom line is they wound up getting their Virginia conviction reversed.
[01:34:08]  But the reason that they're still incarcerated now is because while all of that was being litigated, they were still tried in Nevada for their third and most recent trial to date.
[01:34:20]  That was in 2019, where they were charged.
[01:34:24]  And this was not charged in Virginia.
[01:34:26]  In Nevada, they were charged under this kingpin law, which is not just an analog law.
[01:34:31]  That's a charge.
[01:34:32]  It's called continuing criminal enterprise.
[01:34:34]  Yes.
[01:34:34]  It can be used for any sort of drug case.
[01:34:36]  El Chapo was.
[01:34:38]  Ross Ulbricht?
[01:34:39]  Exactly.
[01:34:39]  Yeah.
[01:34:40]  Yeah.
[01:34:40]  That's another great example of it, too.
[01:34:42]  Probably more applicable than El Chapo, although still further removed from here.
[01:34:46]  That's crazy that Ross Ulbricht got the same sentence as El Chapo.
[01:34:50]  Yeah.
[01:34:50]  And it's, well, because the numbers can only go so high, right?
[01:34:54]  It's, you know, once you talk about hundreds of years, thousands of years.
[01:34:58]  What difference does it make?
[01:34:59]  But it's a law that has a 20 year minimum, is the important thing.
[01:35:04]  Because, again, in a lot of other situations in law, judges will have a lot of discretion, but they won't necessarily have a mandatory minimum that they have no choice but to apply.
[01:35:13]  So, in their most recent trial in Nevada, and that's the one by now I'm now following the story in real time.
[01:35:21]  I'm on board as of around 2018, 2019.
[01:35:24]  So, that was the one time I was ever actually in the same room as them, even though I spent hours talking to them on the phone.
[01:35:31]  Over email and that sort of thing.
[01:35:33]  But so I was there for part of that trial in the summer of 2019.
[01:35:38]  In the trial in Nevada in 2019, it actually looked like they had a shot of winning that case.
[01:35:43]  They were actually feeling pretty good about it because actually, to understand the full context of that, we need to bring back into the picture Arthur Barrier, the dissenting DEA chemist.
[01:35:54]  Because remember, he was the one who the judge in Virginia didn't let them call at their trial, but that's why their Virginia conviction wound up getting overturned on appeal.
[01:36:04]  Barrier actually wound up being allowed to testify for the first time for them in their Nevada trial.
[01:36:10]  But so then, how did they wind up being convicted?
[01:36:13]  In between the time that Barrier was initially testifying for defendants and helping people get acquittals, not Burton and Benton, but in other cases, and the time that he testified for Burton and Benton in Nevada, Barrier himself was arrested and no longer works for the DEA.
[01:36:34]  Again, that's the.
[01:36:36]  Internal DEA dissenter was arrested for a charge related to trying to solicit a minor online for sex.
[01:36:46]  Really?
[01:36:47]  Yes.
[01:36:47]  That's what, again, that's one of the most remarkable things about this story.
[01:36:54]  But the important thing on the timeline of that is that when the judge blocked Barrier from being able to testify in the Virginia case, that was before he was arrested.
[01:37:05]  Right.
[01:37:07]  At that time, he's still this pristine DEA witness.
[01:37:11]  He works for the DEA.
[01:37:13]  He doesn't think the defendants are guilty.
[01:37:16]  That seems like a golden ticket, right?
[01:37:18]  But now in Nevada, after he no longer works for the DEA, he's this pariah there.
[01:37:24]  He's been convicted for a charge.
[01:37:28]  He's now testifying not as this pristine DEA witness, but as a felon.
[01:37:34]  So, okay, if you're a juror in this case, You're seeing not Arthur Barrier, DEA witness, who's testifying opposite DEA, which is baked in reasonable doubt.
[01:37:47]  I mean, if there's a definition of reasonable doubt, it would be two people from the same government agency.
[01:37:52]  I mean, it's even more than reasonable doubt.
[01:37:54]  It's just doubt, right?
[01:37:56]  But so by the time they actually got Barrier on the stand, he's now the bizarro version of Barrier, you could say.
[01:38:06]  He's testifying as a felon.
[01:38:07]  They wind up getting convicted.
[01:38:09]  You can't pinpoint it necessarily to that, but all I can say is he's testified in at least one other case, not having to do with Burton and Ben.
[01:38:17]  Helped leading to an analog acquittal.
[01:38:20]  Every case has their own things going on to it, so it's hard to isolate one factor.
[01:38:23]  But the fact remains he testified for the defense in another case before he was arrested, led to an acquittal.
[01:38:31]  And in Burton and Ben's case, he wound up not saving them.
[01:38:36]  They wound up being convicted despite having someone say, Yes, I worked for the DEA and I don't think that these guys broke the law.
[01:38:44]  Wow.
[01:38:46]  And so now they had to be sentenced.
[01:38:48]  In Vegas.
[01:38:49]  That was in 2020.
[01:38:50]  The judge there actually at the sentencing, this was happening over Zoom.
[01:38:53]  So this was in COVID time, and I tuned into that.
[01:38:56]  But that was very memorable because the judge, he wasn't, he seemed like a fairly down the middle kind of guy.
[01:39:03]  The Virginia judge hated these guys, by the way.
[01:39:05]  That's its own.
[01:39:07]  The Virginia judge did not like these guys.
[01:39:09]  Wow.
[01:39:10]  So the Virginia judge actually, before his sentences wound up getting overturned, he sentenced Burton and Ben to about 30 years each.
[01:39:17]  And so those were the convictions that wound up getting overturned.
[01:39:19]  That was even without any mandatory minimum.
[01:39:22]  And so now in Vegas, they don't have to deal with 30 year each convictions, but now they're looking at, okay, what's this judge going to give us now that we've been convicted under the kingpin law with its 20 year minimum, life maximum, possibly sins for life, and a bunch of other charges that don't have mandatory minimums besides.
[01:39:44]  They wind up getting sentenced to the 20 year minimum.
[01:39:46]  As he's doing it, you could tell, I could tell anyway, that the judge did not even want to sentence him to that.
[01:39:53]  Much time he wound up, and again, I want to emphasize this is not an extreme type of judge, one way or the other.
[01:39:59]  He did not rule for Burton and Ben every way that they wanted him to during the trial, and they're appealing some other rulings that he made.
[01:40:08]  But nonetheless, that I think makes it even more remarkable that he called out not just the analog act, but also mandatory minimums in general.
[01:40:18]  He said something, and I'm paraphrasing that a meth or coke dealer they know what they're doing, and if you're selling an analog where it's more up in the air.
[01:40:27]  He said he was troubled by that and called on Congress to do something about at least mandatory minimums in general.
[01:40:35]  Nonetheless, his hands were tied because of the mandatory minimum.

=== Labeled Not for Human Consumption (12:13) ===

[01:40:38]  So they were sentenced to 20 years and lower sentences on some other charges, which ran concurrently, which means not exceeding 20 years.
[01:40:47]  But if hypothetically that 20 year sentence were to be overturned, they would still have to deal with those lower sentences.
[01:40:52]  But as it stands now, they've served that time essentially.
[01:40:57]  They have that time in because they've been in.
[01:41:01]  For several years, they've been in the whole time basically since they were convicted in Virginia and in around I want to say 2017 or so.
[01:41:11]  So that's they've basically served the time that they would have on the non kingpin law.
[01:41:17]  So now they have an appeal that's pending in the Ninth Circuit, which is the federal appeals court that covers Nevada and other states out west, including California, where they're mounting basically a kitchen sink of arguments, one of them which could topple the kingpin charge.
[01:41:34]  Really?
[01:41:35]  Which would free them, and it would get sent back to the judge to figure out maybe exactly what the calculation would be.
[01:41:42]  But if they got that conviction overturned, they'd be getting out, if not right now, in very short order.
[01:41:47]  Wow.
[01:41:48]  Whereas if you have still that kingpin law on the books, they're still looking at another chunk of it.
[01:41:51]  So, how are they kingpins?
[01:41:52]  How are they charged under kingpin laws, but not like in supermax prisons like Ross Ulbricht or El Chapo?
[01:41:58]  Yeah, that's an interesting question.
[01:42:00]  I mean, I guess the answer is that being convicted as a kingpin doesn't.
[01:42:05]  I think the answer, I guess, is that you need something more than that, right?
[01:42:09]  The beer of prisons aspect is a whole nother thing.
[01:42:13]  Like, even the judges don't really have control over that.
[01:42:17]  So, the prisons are their own life cycle of a case that lawyers and judges don't even really know that much about and don't really need to and don't have that much control over.
[01:42:30]  They've been in, no, to answer your question, no, there's no violence at all that's associated with them.
[01:42:36]  I think technically they've been in some different facilities over the years.
[01:42:41]  I think the Talladega facility they're in, I want to say it was maybe medium security, but it was never.
[01:42:47]  They were never in any sort of place because of them seeming violent or anything like that.
[01:42:54]  I guess in the Ulbricht case, there was that situation that, again, that was more complicated, but theoretically involved violence or that sting operation sort of thing.
[01:43:07]  Yeah, I have a vague impression of it.
[01:43:08]  I don't want to misremember what that was, but right, there was the undercover operation, the DC agent that baited him into like talking him into like, hey, man, you got to take care of this guy.
[01:43:18]  And it was.
[01:43:19]  All a setup.
[01:43:20]  Right, exactly.
[01:43:20]  So, whatever there is to be said about that, there was nothing like that in Burton and Ben's case.
[01:43:25]  So, whatever factors going into the prison stuff is very complicated for how the time actually gets factored and where you go.
[01:43:32]  And it's its own insane bureaucracy, even aside from the judiciary, and not something that's easy to shine a light on because it's a very insular system of its own.
[01:43:42]  But no, they've always been in relatively lower level type of facilities.
[01:43:49]  So, you mentioned like when you first got into this book and reporting on this law, these vague laws, there was another law that was being tried or being questioned.
[01:43:59]  What was that other law?
[01:44:02]  Maybe it was the fentanyl law.
[01:44:04]  I don't know.
[01:44:05]  Okay.
[01:44:05]  There's been a more recent law.
[01:44:07]  Maybe that's what it is.
[01:44:08]  I'm not sure.
[01:44:09]  Yeah.
[01:44:09]  What is the fentanyl law?
[01:44:11]  Yeah.
[01:44:11]  So, in the last few years, it's become more of a thing, obviously, as fentanyl has become more of a national topic of conversation.
[01:44:19]  It's a law for fentanyl related substances.
[01:44:22]  So basically, there's now on the books what I think of anyway as a supercharged version of the Analog Act that it does what's called class wide scheduling.
[01:44:33]  So, for example, we're talking about a substance like XLR 11 when it comes to the Analog Act.
[01:44:38]  It's an individual substance trying to be proved to be substantially similar to an already listed drug.
[01:44:44]  This fentanyl related substances law, what it does is it takes a much broader approach.
[01:44:49]  And I don't want to botch the science of it, but the bottom line takeaway is.
[01:44:53]  Is it's not necessarily just outlawing whatever the chemical name, XLR11, for example, version of whatever the fentanyl type molecules might be, but saying if it does a type of thing that encompasses a much broader range of chemicals.
[01:45:09]  So it's much more overbearing in the sense that it outlaws much more things, but it also doesn't even have that component where the DEA needs to prove that.
[01:45:20]  It automatically is scheduled as the DEA wants it to be.
[01:45:25]  And this is something that I haven't seen.
[01:45:27]  Tested out in the courts to the extent as even the Analog Act has been, relatively few as it's been.
[01:45:33]  So I don't know exactly how that's playing out.
[01:45:36]  All I know is there's been it has the same political actors on each side of it in the sense of you have people who are on the more liberal side saying this is over criminalization, it's outlawing too many substances, also affecting scientific research potentially because in outlawing such a broad swath of things, it's outlawing things that not only are harmful, not only are unknown, so you couldn't say, but things that are potentially even helpful.
[01:46:04]  So it's a similar issue, but kind of to an even more extreme.
[01:46:11]  Measure.
[01:46:12]  It's a beefed up version of the Analog Act, but specifically in the fentanyl related substances realm and that sort of thing.
[01:46:19]  But there's been more attention on that because of opioids being a more prominent topic of conversation these days.
[01:46:26]  But the Analog Act has played kind of a funny role in this discussion because you have, and again, I'm using this as kind of a catch all imprecise, but sort of the liberal side that's against the fentanyl related substance class wide scheduling, they're saying you don't need to do that.
[01:46:44]  Because we have the Analog Act on the books that you can use.
[01:46:48]  And so they're kind of holding that up, not necessarily saying the Analog Act is good, although in doing so, one Democratic politician did in a way that I thought was very funny and probably he might not have even really understood what the Analog Act was because there's no reason to if you don't have to.
[01:47:05]  But he said something like, the Analog Act protects against over criminalization and protects due process rights, which is just an insane thing to say if you know anything about it.
[01:47:13]  But he wasn't saying that in support of.
[01:47:17]  The Analog Act, but saying we have this, so you don't need to do this relatively more overbearing fentanyl related substances law.
[01:47:24]  Right.
[01:47:25]  Okay.
[01:47:26]  And there was an element of some of these things being labeled as not for human consumption.
[01:47:31]  Yeah.
[01:47:31]  So under the Analog Act, it's not just that you could be prosecuted for distributing something that's substantially similar to a scheduled drug.
[01:47:42]  Part of the law is that it needs to be shown that it's done for human consumption.
[01:47:47]  And so.
[01:47:49]  I haven't really thought that that's been too much of an issue, although it's, I think other people think about it differently because, yes, if you're a prosecutor, it's part of the case that you need to prove.
[01:48:00]  How do I show that they intended this for human consumption?
[01:48:03]  And so on the labels of the spice products and on bath salts at the time, if you saw them, they would say not for human consumption.
[01:48:10]  No one believed it.
[01:48:11]  Right.
[01:48:12]  But that was just something, it's like any other sort of business loophole, even for quote unquote legal businesses.
[01:48:19]  You do things because it's a Part of government regulation.
[01:48:21]  Right.
[01:48:22]  And also, even broader than the Analog Act, because the FDA regulates things that are for human consumption.
[01:48:29]  Because if you're selling something that's being consumed, then that you would be potentially dealing with the FDA too.
[01:48:35]  So it's not only the Analog Act, but also for not having to deal with FDA regulations too.
[01:48:42]  But so anyway, so that's it's technically something that prosecutors have to prove.
[01:48:46]  But I actually think that, again, this is putting my prosecutor hat back on.
[01:48:52]  You might think at first, oh no, this is another thing I have to prove.
[01:48:55]  It's another challenge I need to meet.
[01:48:57]  I actually would like having to have to prove that if I was a prosecutor because this substantial similarity thing is totally nuts and vague, right?
[01:49:07]  But in this not for human consumption element, you have people who are selling a thing very clearly trying to circumvent this law on the face of it.
[01:49:19]  And so, regardless of what all the scientific mumbo jumbo is, you're going to have.
[01:49:23]  The prosecution experts saying it is substantially similar.
[01:49:26]  You'll have the defense saying it's not, but you can talk to a jury in a real world way.
[01:49:30]  What they can understand is trying to get something over on someone, right?
[01:49:34]  And so, look, these guys had this stuff.
[01:49:37]  It was labeled not for human consumption.
[01:49:39]  Obviously, it is because everyone's smoking it.
[01:49:41]  The law says you can't still suffer for human consumption.
[01:49:44]  That's obviously why they're doing it.
[01:49:46]  So, that just adds to the level of shadiness in the picture that the prosecution would try to paint if they're trying to convict someone under the Analog Act.
[01:49:56]  Whereas the reason that they're actually doing it is to try not to violate the law.
[01:50:00]  But in doing so, they're looking like they're trying to violate the law.
[01:50:04]  Right.
[01:50:04]  Right.
[01:50:04]  So, if I'm the, and on the flip side, if I'm defending one of these cases, I would concede that element.
[01:50:12]  I would say, look, yes, there's no question that people were consuming this stuff.
[01:50:16]  You'd have to be an idiot to even try and pretend that they weren't, but you still have this substantial similarity issue that's inherently vague that the prosecution and defense can't agree on.
[01:50:27]  And that's where I would probably want to focus a jury's attention on if I was the defense, aside from trying to talk about this more common sense fraud type of thing.
[01:50:37]  Because once you're in a position of having to explain, like, oh, no, no, no, no, it's we're doing, you know, you sound.
[01:50:43]  If you're defending yourself, so just say, yes, people were smoking stuff that they were selling.
[01:50:48]  There's no question these guys are making a ton of money, but substantially similar, even these scientists can't agree on what this means.
[01:50:54]  That's, I think, where the smarter defense attorneys have focused their attention on.
[01:50:59]  And conversely, where smart prosecutors have focused their attention on the not for human consumption part, whether they've realized they were doing that or not.
[01:51:06]  And I think Hamilton touched a little bit on how there's actually some weird aspect of the analog act that helps people like him be able to study other drugs.
[01:51:18]  How did he explain that?
[01:51:19]  Yeah.
[01:51:20]  I'm remembering what you're saying, and I don't want to misquote him about that, but there was something that was sort of counterintuitively beneficial about it.
[01:51:28]  I don't know if this was exactly it, but I think for someone like him, he's not making things for human consumption.
[01:51:36]  And so that stands in contrast to someone who would potentially be violating the Analog Act.
[01:51:43]  So I don't know if it's that whatever he's doing looks better by contrast or other people who are making things that are.
[01:51:49]  Not for human consumption.
[01:51:51]  I remember studying things that are very, very similar, like on the fringes and sort of this weird chemistry.
[01:51:58]  Exactly.
[01:51:58]  And I couldn't even speak to the science of that, but I remember that.
[01:52:01]  Yeah, it had this sort of counterintuitive thing.
[01:52:03]  So it's the Analog Act is a lot of different things to a lot of different people, but I think everyone can agree it's incredibly weird.
[01:52:09]  Yeah, yeah, for sure.
[01:52:12]  What sort of feedback have you gotten on the book from people that have read it?
[01:52:15]  It's all been good.
[01:52:16]  I'm happy to say.
[01:52:17]  Definitely still trying to spread the word.
[01:52:20]  About it.
[01:52:20]  I think more people still need to know about it.
[01:52:23]  And I don't try and tell anyone what they should think about it one way or the other, but I do think it's something that people should know about.
[01:52:30]  Even lawyers, I think, even people who, even prosecutors, even drug lawyers.
[01:52:35]  I didn't know about the Analog Act when I was a state drug prosecutor.
[01:52:40]  I think I had some vague idea about it.
[01:52:43]  Like sometimes if we had a bust and the lab came back that it wasn't something that was listed under, then like maybe there was some chance of it.

=== Feedback on the Book (15:04) ===

[01:52:52]  Being prosecuted federally.
[01:52:53]  I think I had some vague notion of that in the back of my head, and maybe that was what the Analog Act was, but it wasn't something that I ever had to think about in any sort of meaningful way.
[01:53:04]  And as a prosecutor, I don't think it's something that I think prosecutors are happy not to deal with these sort of cases, especially on the federal level where you really just want something that's a sure thing.
[01:53:15]  It's not like they're looking to try any case possible, they want to win, right?
[01:53:20]  And so there's reasons for everybody to hate this law.
[01:53:24]  That doesn't mean it's going to go away again, going back to the fact that the government's not paying rent on keeping it in the garage exactly.
[01:53:30]  But if they had to choose some other, if there was a gun to their head and say, oh, you can't have some other thing if you still want to keep the Analog Act, they probably would say, okay, fine.
[01:53:40]  What district of New York were you prosecutor in?
[01:53:43]  Manhattan, Manhattan District Attorney's Office.
[01:53:45]  So New York County.
[01:53:47]  Oh, okay.
[01:53:49]  So it wasn't federal?
[01:53:51]  No, it was state.
[01:53:52]  It was state?
[01:53:53]  Yeah.
[01:53:53]  Oh, okay.
[01:53:53]  So it was in the same place.
[01:53:55]  The federal district where that was was the Southern District of New York, it was down the street, but it was state.
[01:54:01]  Version of that area.
[01:54:03]  And you being a prosecutor working for MSNBC, what kind of stuff do they wheel you out on the TV to talk about?
[01:54:09]  Oh, it's a lot of former prosecutors.
[01:54:11]  Oh, really?
[01:54:12]  Yeah.
[01:54:12]  Actually, I mean, I'm sure they're talking about like the Trump stuff right now.
[01:54:15]  That's been the big thing.
[01:54:16]  All his prosecutions.
[01:54:16]  I was up late last night.
[01:54:17]  If you see bags under my eyes, we were working on that late last night with the latest, the January 6th indictment.
[01:54:24]  That's a big part of it, I would say.
[01:54:27]  He has his own legal docket that keeps us pretty busy.
[01:54:31]  But I'm relatively new there and still feeling it out.
[01:54:34]  But I think that was probably one of the big things.
[01:54:35]  A lot of it's the Supreme Court, so not necessarily related to that because that was the main thing that I was covering.
[01:54:40]  How does that process work when they ask you to report on the Trump indictments and all that?
[01:54:45]  Meaning what?
[01:54:46]  Like when MSNBC, they're like, hey, we want to talk to you about the Trump indictments.
[01:54:49]  Like, what is the process as far as like, hey, we want your opinion?
[01:54:53]  Let's start rolling at this time.
[01:54:54]  Is that how it goes?
[01:54:56]  I guess.
[01:54:56]  I mean, it's mainly a writing job.
[01:54:58]  So I'll be, it's Deadline Legal Blog is the.
[01:55:03]  The blog where most of my stuff will be.
[01:55:05]  But if it's something on TV, it'll usually be something just happened, kind of doing, I guess it's more analysis, maybe you would say, than opinion.
[01:55:13]  Although I guess whenever anyone's saying anything, there's some element of opinion baked into it, right?
[01:55:18]  Or perspective or in news in general, because I still see myself as somewhat new to the news industry because it's a new thing that I have embarked on coming from law.
[01:55:31]  You're always making choices, right?
[01:55:32]  And what you do or don't cover, regardless of what you're.
[01:55:35]  Perspective is there's only so many hours in the day.
[01:55:38]  I guess the internet's unlimited in some way, but you have to focus on where you're taking your time.
[01:55:43]  But I think it's more of like, I guess the value is, or at least what I try to do anyway, because trying to break things down and explain legal concepts to people who are non lawyers because stuff can be incredibly confusing.
[01:55:58]  Yeah, it's crazy.
[01:55:58]  It's crazy trying to follow all of it in the news and see, like, pay attention to what people do report on or don't report on.
[01:56:07]  The thing about the Trump thing is like it's interesting that they decided to bring it two and a half years after it happened with this January 6th thing.
[01:56:14]  Yeah.
[01:56:15]  What is your opinion on all of that?
[01:56:17]  On the timing of it?
[01:56:18]  The timing of it, the whole thing.
[01:56:20]  Like, what is your overarching 30,000 foot opinion on everything that's going down right now and like the heat of this presidential race and all of the lawsuits that are being brought down and then simultaneously the stuff going on with Hunter Biden and all that?
[01:56:33]  I don't know if I have an overarching 30,000 foot view of it.
[01:56:36]  I mean, as far as.
[01:56:39]  I could probably provide more value trying to answer specifically.
[01:56:42]  I mean, I think as far as the two and a half years, I mean, I guess it's just like anything else in the sense of, and I'm not speaking in defense or against anybody, but just trying to explain it.
[01:56:58]  I mean, unless you're doing like a simple kind of direct crime, right?
[01:57:03]  You're stabbing someone, you're selling crack or whatever it is, it's unlikely you're going to have a case that's being brought that quickly.
[01:57:10]  I mean, I think people.
[01:57:12]  On the other side of it, who had wanted Trump to be charged, did want it to happen sooner, right?
[01:57:19]  So, I mean, I think there might be people who have a similar question, but for different reasons, right?
[01:57:26]  Right.
[01:57:29]  Yeah, like why would they bring it down like right in the middle of the presidential race?
[01:57:33]  Like it's almost like perfect timing, you know?
[01:57:36]  Yeah, I don't know.
[01:57:37]  I mean, I know what you're saying.
[01:57:39]  I don't know if.
[01:57:41]  Let me put it to you like this I don't think there's no convenient time to be prosecuted, right?
[01:57:47]  Right.
[01:57:49]  And again, this is kind of tying back into the story that I'm writing about here.
[01:57:53]  I mean, I think I have a pretty good view of kind of what it means for the government to be using.
[01:57:59]  Their power, right?
[01:58:00]  And so you never want to be on the other end of that, whether you're a regular person, whether you're one of the most powerful people in the world, right?
[01:58:09]  So, I mean, I honestly don't think there's a lot to the timing argument of it, just because I think if that's what someone is saying, you would have something to say about it happening at any time.
[01:58:25]  That's the way that I would think about that.
[01:58:28]  I don't know, maybe not.
[01:58:29]  I don't think it's like.
[01:58:30]  Okay, here's the appropriate window where we think it's okay for you to charge someone who's a former president or who's running for president, right?
[01:58:37]  Like, if I had to guess, I would think it would be hard to find somebody who says, yes, I would be okay with this having happened a year ago, but not now, right?
[01:58:47]  Like, I feel like we would have a hard time finding that person.
[01:58:51]  Maybe not.
[01:58:51]  I don't know.
[01:58:52]  I mean, it seems like with the three different indictments, it seems like the one with the Mar a Lago documents is more of a straight shot.
[01:58:59]  Like, they have way more evidence.
[01:59:01]  It seems like more of a slam dunk.
[01:59:03]  Dunk for the prosecutors than this one does.
[01:59:07]  The January 6th one.
[01:59:07]  The January 6th one, yeah.
[01:59:09]  I think that, so, I mean, this is something that just came out last night that, you know, still digesting that one.
[01:59:15]  But I think it's, there's no question the classified documents one is a very severe case that I don't know if it, I think the biggest question is whether and when it actually goes to trial.
[01:59:28]  And so I think for all of these cases, the federal cases anyway, and I don't mean this glibly, really his best defense is.
[01:59:36]  Becoming president again and then thwarting the cases that way.
[01:59:43]  The classified documents case is no, I'd be if I was a defense attorney in that case, and it's not something you could say to literally anyone else in the world who doesn't have a shot at becoming president, but it's the best defense is making the case go away.
[01:59:58]  No one else has that power in the world aside from the prosecutor themselves or the president.
[02:00:02]  As far as I think it's a good question in terms of like straight shot versus a more expansive.
[02:00:09]  January 6th case.
[02:00:10]  And so, in the classified documents case, that one was just superseded.
[02:00:13]  That actually has a little bit more to it, even than at the beginning.
[02:00:17]  So, I don't even, there's the potential that could theoretically happen with the January 6th indictment, too, right?
[02:00:24]  I mean, there were more, it could have, the January 6th indictment could have been, I think, even more expansive than it is right now.
[02:00:32]  So, it is, I don't know if there really is that kind of context.
[02:00:36]  Did you read it?
[02:00:37]  Yeah.
[02:00:37]  Oh, really?
[02:00:38]  Okay.
[02:00:39]  Yeah, no, that was last night.
[02:00:40]  There was a whole.
[02:00:42]  We're reporting on that.
[02:00:44]  Had a whole live blog going right when it came out.
[02:00:48]  But I think that, yeah, the classified documents case.
[02:00:50]  They're saying there's like a free speech argument he has.
[02:00:54]  So I think that he might bring that up.
[02:00:57]  I think that was going to be more of a case in a more expansive charge.
[02:01:03]  One thing that wasn't in there was a seditious conspiracy charge, or I think maybe some people were looking for whether that was going to be there.
[02:01:10]  Like some of the Oathkeeper people wound up getting charged with something like that, like for Trump's.
[02:01:16]  Speech on the ellipse that was sort of, you know, whipping people up before it went in, whether that was going to be a free speech issue there.
[02:01:24]  And he still might raise that sort of argument, but I don't know if that issue is going to be as present.
[02:01:31]  If this indictment is the last word on it, if there isn't additional charges, I don't know if there is going to be, at least not in that way.
[02:01:40]  He might still raise it, I'm sure.
[02:01:41]  And again, this just came down.
[02:01:43]  So I think on all sides of it, everyone's still trying to make sense of it and see what it is.
[02:01:49]  Yeah.
[02:01:50]  You know, you're kind of right to the point where it's, There's really two options for him.
[02:01:56]  It's either win the presidency and pardon himself or not win the presidency and go to jail, right?
[02:02:02]  Well, a couple things about that.
[02:02:04]  One is, I don't think it needs to get to as drastic as pardoning.
[02:02:08]  So that's certainly an option.
[02:02:10]  But I mean, really, when you talk about pardoning, ideally, he would then have another Republican win the presidency and then they would pardon him because the self pardon question is a bit of an open legal question.
[02:02:24]  Oh, is it?
[02:02:25]  Let's say it hasn't happened yet.
[02:02:26]  I mean, so again, it's.
[02:02:28]  I'm just saying, like, we can game out.
[02:02:30]  There's a bunch of different scenarios, but it's not either pardon or nothing.
[02:02:33]  But look, if it's going to be a Republican, it would probably be Trump, right?
[02:02:37]  Who would win.
[02:02:39]  I think that what I'm trying to say is you don't need to go to the step of pardoning because once you're the president and you control the government, you can make the case go away without having to take the step of an untested self pardon.
[02:02:52]  Although he could do that too, to sort of belt and suspenders sort of thing.
[02:02:56]  But to your flip side, it's not that or go to jail.
[02:02:59]  I mean, look, it's.
[02:03:01]  A trial is asking a question, right?
[02:03:04]  It's not a predetermined outcome.
[02:03:06]  And so it would be guilty or not guilty.
[02:03:11]  That's if we're looking at it for really what it is.
[02:03:14]  You never know either that or what's the point of having a trial.
[02:03:17]  And look, crazy things happen in trials.
[02:03:21]  Again, we're still at the indictment phase in both of these cases.
[02:03:24]  And, you know, you would think that the government is going to bring the A game that it has, especially in such a closely Watched case, but stuff comes up all the time.
[02:03:35]  You never know.
[02:03:35]  And again, going back to what we were talking about with juries, you never know what's going to happen in a case.
[02:03:42]  Right.
[02:03:43]  Look, both cases look very strong on paper.
[02:03:47]  I think most objective observers would agree about that, but that does not necessarily mean there's going to be a conviction because a trial is a question.
[02:03:57]  Right.
[02:03:57]  It's not a statement.
[02:03:58]  Right.
[02:03:59]  It's almost like a prerequisite to be a politician.
[02:04:03]  It's like, Corruption is ubiquitous, right?
[02:04:05]  It's like, and people kind of accept that, right?
[02:04:08]  People are almost, they're okay with corruption.
[02:04:13]  It's a ubiquitous thing.
[02:04:14]  We all know these people are corrupt.
[02:04:16]  They're not just playing golf and then going to dinner, right?
[02:04:20]  They're fucking, it's a pay to play game.
[02:04:25]  But it's the hypocrisy that I think really gets people, you know?
[02:04:34]  When you see them going after one person and then the other.
[02:04:37]  Person's doing the same thing, they're not going after the other person.
[02:04:39]  I think that's where people start to get riled up with the hypocrisy side of it.
[02:04:46]  And that's just, you know, that's just something that I've noticed paying more attention to this stuff ever since, you know, Trump first got into office.
[02:04:54]  And it's bizarre that, you know, it's a whole nother thing that these are the only two people that we have to pick from Trump and Biden.
[02:05:03]  It's fucking crazy.
[02:05:04]  Like, there's no other options.
[02:05:06]  And I think he's winning by a landslide compared to the other.
[02:05:09]  The next two.
[02:05:10]  I think the DeSantis is the next one.
[02:05:11]  Trump, you're saying?
[02:05:12]  Yeah.
[02:05:12]  Oh, yeah.
[02:05:12]  There was just a new poll that came out that, even with the latest, I think it might have come out before the January 6th indictment, but I wouldn't think that that would change.
[02:05:20]  If anything, it seems to be kind of like some kind of superpower, like eating them more and they become more powerful.
[02:05:29]  You know, from what I was alluding to with the two and a half year thing waiting.
[02:05:34]  No, and I don't mean to dismiss that, but it's kind of like something that I think you need to unpack it, right?
[02:05:38]  It's like, what are you actually saying when you're saying that?
[02:05:41]  Like, I know.
[02:05:43]  And it's more of not just what are you saying, but like what are the other options within that?
[02:05:47]  Like, are you therefore saying, yes, I'd be perfectly fine with a case being brought in this time period?
[02:05:53]  That's what I'm saying.
[02:05:54]  Like, I'm my skepticism is that someone who raises that question of why now, I'm skeptical that they would be okay with it at a different time.
[02:06:03]  Maybe I'm wrong about that.
[02:06:04]  Do you see what I'm saying?
[02:06:05]  Definitely.
[02:06:06]  I definitely see what you're saying.
[02:06:08]  But like the idea if, okay, say you want to accept the fact that they decided to bring the indictment at this time.
[02:06:15]  Point in time because it's like leading up to the elections, right?
[02:06:20]  And they want to sort of like, you know, throw a wrench into his whole thing he's got going.
[02:06:27]  I think that the, I think it's only going to work against them if that was their plan because it only makes him more of an underdog and people fucking love an underdog.
[02:06:40]  Yeah.
[02:06:40]  Like imagine if his presidential poster was a fucking mugshot.
[02:06:44]  Are you kidding me?
[02:06:45]  You might as well just fucking hand him the presidency right now.
[02:06:47]  Right.
[02:06:48]  Well, that's what I was going to kind of say, though, going the other way.
[02:06:50]  Because if you really follow through that theory of the case is being brought now in order to take Trump out of the running, the flip side of that is saying that Democrats don't want Trump to be the nominee.
[02:07:06]  And I don't know if that's really the case.
[02:07:08]  So it's, there's sort of, if you're going to go down that road, you have to go down all the way, right?
[02:07:14]  So it's sort of, I'm sure there are plenty of Democrats who, Would want Trump to be the nominee because they think that they would be able to beat him or that maybe they would feel comfortable being whoever the next person is, too.
[02:07:29]  I mean, I'm not, I don't have all the polling in front of me, but it's sort of like if you actually go down the road of playing out the scenario you're saying, it's, you can't have it both ways there.
[02:07:40]  It's like either you think this guy is so bad that you're trying to take him out, or it's, oh no, we actually think this guy sucks so much that.
[02:07:50]  It would be so easy to beat him, right?
[02:07:52]  It's like it can't be both of those, right?
[02:07:55]  Yeah, I see what you're saying.

=== The Georgia Dominion Case (04:57) ===

[02:07:57]  And the other case was what the Georgia case?
[02:07:59]  Well, that hasn't happened yet.
[02:08:00]  I think that's going to happen soon.
[02:08:02]  There's the New York case, that's the one that's the hush money.
[02:08:05]  That's the okay, yeah, that's the state case.
[02:08:06]  That's in my old office.
[02:08:08]  Oh, is it really?
[02:08:09]  Yeah, okay, that's that's where I was a prosecutor.
[02:08:11]  So the fourth one will be the Georgia case, most likely.
[02:08:14]  Yeah, and that's the one that one's kind of damning too, because I think there's a lot of evidence with people that were around him.
[02:08:20]  There's overlap with the one that just came down.
[02:08:23]  The federal January 6th case.
[02:08:24]  Because if you read the indictment in that one, the one that just came down last night, there is a lot of Georgia evidence in it.
[02:08:31]  Like, remember that whole thing about the call to the Georgia Secretary of State of, I need you to find 11,000 votes.
[02:08:38]  Yeah, right.
[02:08:39]  So that is actually excerpted in the federal indictment.
[02:08:42]  And I would think that that's going to play some role in the Georgia indictment, too.
[02:08:46]  There's actually kind of an interesting thing, too, for people who might be wondering, might start to raise a question in their minds about this.
[02:08:53]  And this isn't a Trump point, it's just kind of a general legal point.
[02:08:56]  People start talking about double jeopardy because this comes up too in the context of the fake elector scheme where the people from all the different states submitted the false verifications saying that we are the actual electors, not the people who were actually chosen by the people, of whether you can actually be prosecuted on both the state and federal level for the same conduct.
[02:09:19]  And as crazy as it sounds, you actually can be, and there isn't a constitutional issue with that, even though it sounds like, in a common sense way.
[02:09:27]  Right, yeah, I remember that period of time being so confusing.
[02:09:32]  It was just like the fucking soup of different fucking news that was just right after January 6th.
[02:09:38]  Right after January 6th.
[02:09:39]  I remember I was somewhere and I had like one of my uncles.
[02:09:43]  Where were you?
[02:09:43]  He goes, Goddamn Dominions.
[02:09:45]  You hear about the motherfucking Dominion machines in Venezuela.
[02:09:49]  So he's an MSNBC viewer.
[02:09:51]  Yeah, exactly.
[02:09:52]  Yeah, he's a big MSNBC CNN viewer.
[02:09:53]  Yeah, big fan of Rachel Maddow.
[02:09:56]  Yeah.
[02:09:57]  And then I was like, I was like, What the fuck?
[02:10:00]  And then now you kind of like see the stuff that's going on now and the like sort of like the evidence and find the votes.
[02:10:07]  And it's just like, and then the whole fucking Fox News lawsuit with Dominion and the settlement and Tucker Carlson leaving Fox News.
[02:10:14]  Yeah.
[02:10:15]  What did you think about that?
[02:10:16]  Fuck.
[02:10:17]  I don't even know what to think about that.
[02:10:19]  I mean, what did you think about it?
[02:10:24]  I mean, I don't really have a distinct thought about it.
[02:10:27]  I mean, I was, and I think this is just maybe just more a personal thing about.
[02:10:31]  Who I am, just to say, like, I covered some of that lawsuit, the Fox Dominion lawsuit.
[02:10:40]  And I guess I just saw more of my role is trying to break down the legal issues of it as far as where Tucker Carlson works or doesn't work, whether he's on Fox News or not.
[02:10:52]  It's just not something that occupies a lot of my thinking.
[02:10:54]  Well, it's like, it's a weird thing where, like, you have these people like Tucker.
[02:11:02]  That also, someone else new comes up, kind of going back to again, yeah, we're not talking about, uh, but to take it from another analogy where you talk about El Mayo or whatever it is, right?
[02:11:14]  It's another, it doesn't change the game.
[02:11:16]  There's a new figure that arises, and it's the same story winds up repeating.
[02:11:21]  But it's just crazy that you have people like him, and there's a lot of other people like him on the other side of the aisle too, who, um, are just as popular and have just as much trust, um, that.
[02:11:33]  That are saying things that they know are false, which is like the evidence of him baking, saying, This is bullshit.
[02:11:40]  I can't believe this.
[02:11:41]  And then he goes on the fucking TV and basically saying that the thing was stolen.
[02:11:46]  Tucker, you're saying.
[02:11:47]  Tucker, yeah.
[02:11:49]  Well, I mean, I guess the answer to that is then someone should sue somebody if that's happening, right?
[02:11:55]  I mean, do what Dominion did if you have the cards.
[02:11:59]  Yeah.
[02:12:01]  Yeah, I don't know what to think about all of it, man.
[02:12:04]  It's crazy.
[02:12:05]  It really is.
[02:12:07]  It's just a lot.
[02:12:09]  I mean, even just as someone who it's my job to try and know everything that's going on, it's incredibly difficult to actually just really get your head around things.
[02:12:20]  That's one of the reasons I like law in a way, and in terms of talking about court cases and things like that, because at the very least, you have kind of a primary document to work off of.
[02:12:30]  If you're talking about a legal opinion, there could be all sorts of things that go into it that are fallacious and corrupt.
[02:12:36]  And all sorts of weird things happening behind the scenes, but there's at least kind of like a place to start from.
[02:12:40]  And I feel like a lot of times the issue is just not even having the same conversation or speaking the same language.
[02:12:47]  So, it's when you get in situations where you're at least working from the same document, you can at least be talking about the same thing.

=== Finding Common Ground in Law (00:33) ===

[02:12:54]  But that's not always the case.
[02:12:57]  See what I'm saying?
[02:12:58]  Yeah, yeah, yeah, definitely.
[02:13:00]  Cool, man.
[02:13:00]  Well, thanks for doing this.
[02:13:01]  I really appreciate it.
[02:13:02]  Thank you.
[02:13:02]  Tell people where they can find your book.
[02:13:04]  I'll link it below, obviously.
[02:13:05]  Sure.
[02:13:05]  JordanRubin.net.
[02:13:07]  I'm on all the big booksellers.
[02:13:09]  The audiobook actually just came out, too.
[02:13:10]  If you're an ear reader, that's just out now.
[02:13:13]  A lot of ear readers out there.
[02:13:14]  Tantor Media.
[02:13:16]  That's on all the audiobook places, too, wherever books and audiobooks are sold, is that right?
[02:13:20]  Perfect.
[02:13:21]  Perfect, bro.
[02:13:22]  Well, thanks again.
[02:13:23]  Like I said, I'll link it all below.
[02:13:24]  And good night, everybody.
[02:13:27]  Thanks, Danny.