Interviewer: What are the common synthetic drugs that are out there and what are they mimicking?

William Kroger: The common synthetic drugs out there right now are mimicking marijuana, synthetic marijuana type drugs which use chemicals such as JWH018 or URL144 or AM2201 they are considered illegal by the federal government.  The way they make it usable is by taking these powder formulas and mixing it with another herbs, it is then packaged and sold at smoke shops or mini marts for the most part.

The Criminal Elements Try To Stay a Step Ahead of the Government by Changing the Chemicals to Avoid Prosecution

Interviewer: Is the blend always the same?  Do people try to change the chemicals that aren’t regulated and make drugs like that?

William Kroger: Absolutely. They try to keep a  step ahead of the government by changing the chemicals. They stop selling the ones that are illegal and they move on to other chemical compounds and that are changed in molecular structure so it doesn’t resemble the illegal substance structurally.

Among Synthetic Drugs, Methamphetamine Has the Worst Side-Effects on a User

Interviewer: Do you see people that have adverse reaction to these drugs; do they get very sick or paranoid or die?

William Kroger: I don’t see it any more than any drugs; I think probably Methamphetamine is the worst drug out there with the worst side effects.  I don’t think any synthetic drugs comes anywhere close to being as bad as Methamphetamine is or other drugs of that type.

The Primary Reason that People Are Attracted to the Use of Synthetic Drugs

Interviewer: Why do people even use these synthetics? There’s medical marijuana in southern California and there are a lot of other drugs there, what’s the attraction?

William Kroger: The initial attraction was synthetic drugs, when they came out, were actually produced by a doctor doing some research on pain relief for cancer patients. It was a cannabis related molecule that he manufactured so that it wouldn’t give you the psychotropic affect but it would give you more of the pain relieving affect. What happened is people got knowledge of this and the reason it became so popular was because people in the military and on court supervision could use it and it wouldn’t show up on any kind of a urine test, so they could be under the influence or using those on the daily basis and nobody would know about it because it wouldn’t show up positive for illegal drugs.

The Common Commercial Names Used to Market Synthetic Drugs in California

Interviewer: What are some of the commercial names?

William Kroger: K2, Spice, King Kong, Mr. Nice Guy, Scooby Snacks, Sky High, the names go on and on.  It’s typically marketed in the area of 3.5 gram bag or sometimes it’s sold by gram bags but to expand on your question about why people use it rather than medical marijuana; medical marijuana is not legal in all states and there are really only a handful of states that allow recreational use of marijuana. Some states like California just don’t prosecute marijuana as much as most places do. When you’re looking back towards the Midwest or the fly-over people, they don’t have sources or they don’t have all the medical grades of marijuana or all the top graded marijuana that the other states typically have. So they’ve got to go for an alternative and it seems that the synthetics are more popular in places like Oklahoma, Texas and Missouri, North Dakota and South Dakota, all those places where they don’t really have strains of marijuana.

Interviewer: Are you seeing the exact same crimes as you do with any other drug, possession, distribution and all that?

William Kroger: No, they hit it a little bit harder.  They really don’t get the guys at the bottom-end that much; they really go after the manufacturers and distributors more than anybody. The problem is that the state and federal laws change and the people in the industry keep up with the laws and by the time they make an arrest of somebody, the law will have changed, the chemical structure will have changed and then it won’t be illegal.   It’s very expensive for the states to prosecute these cases and very difficult for the state to prove that the drug is illegal.  The state will then join forces with the feds and they will tend to prosecute the manufacturers or distributors under the Analogue Act.

The Role of The Analog Act in Prosecuting Synthetic Drug Cases

Interviewer: In chemistry, you change one molecule or one tiny thing on the structure and it can have completely different effects and without testing it on people or on subjects; how could the government make a case that something that’s similar acts as all is the same? How would they know?

William Kroger:   They don’t know.  They go by using the analog act which was really enacted to halt foreign drugs from entering the US. It was enacted in 1986 and one prong is that the chemical being charged must be substantially similar to an illegal drug banned under the Controlled Substance Act.  Our chemists for the most part, agree that none of the drugs that have been provided to them for their opinion are anywhere near being substantially similar.  What I mean by substantially similar is that there are about nine different chemicals that have been scheduled as schedule I drugs under the Controlled Substance Act and they’re completely illegal. Manufacturers and distributors in the industry don’t typically use those ones anymore. They jump off those ones and they go on to chemicals whose structure is substantially different. In an attempt to prosecute them the government charges them under the Analog Act.

Mass Distribution and Production of Synthetic Drugs Are Common in California

Interviewer: Do you have any typical case where you have someone who’s been accused of distributing large quantities of it?

William Kroger: Yes, typically we’re getting people who have large quantities of it who are manufacturing it or who are distributing it across the country.

Typical Avenues Of Defense In Synthetic Drug Related Cases

Interviewer: Where do you look for defenses in these kinds of cases?

William Kroger: The defenses that we look for are, when did they supposedly sell this substance and was it illegal at the time they sold it? If they’re selling something that’s called ABC Fubinaca which is one that was recently made illegal on February, if they sold it before the February date, was it illegal to sell? We know that after that date, it was illegal but if they’ve sold it before that date, then we have an argument that it’s not and then it’s a trier of fact. That’s something that typically we have to argue at trial and let a jury decide whether or not it’s an analog or whether it’s comparable to a drug that’s on the Schedule I list or if it’s not.

It is Imperative to Have Extensive Knowledge of Chemistry to Handle Synthetic Drug Cases

Interviewer: It sounds like there are a lot of lab testing issues that you have to look into in order to find the defenses for the case?

William Kroger: Yes.  But there is much more, the knowledge of the law the understanding of the basics of chemistry and an understanding of the nature of the drug in general. There is a lot of lab testing and there is a lot of chemistry needed. There’s a lot of experts that are needed. When I went to law school I didn’t know that I’d become a chemist and a biologist but having been doing these cases for a couple of years, now that’s something that I’ve learned quite a bit of.

Interviewer: What about the lab test? Doesn’t the lab mess up testing sometimes or lose samples or contaminate them or weigh them wrong?

William Kroger: The labs that our clients use specifically do chemical testing on substances  of this nature. They know what they’re doing and they’ll test things over and over to make sure that it is what the results say it is. Our clients are very careful with it. They don’t distribute anything unless they have lab test results to go along with it that show what the exact chemical is to prove that it’s not an illegal substance.

Interviewer: So, the clients themselves will have lab testing done just for themselves?

William Kroger: They’ll get lab tests and when they get their chemicals and then they’ll supply those lab tests with the products.

The Basic Problems Encountered When Defending a Synthetic Drug Offense

Interviewer: The crux of the case is that it is the government trying to say that it’s an analog to an illegal substance or an illegal substance, any other major issues that come up in these cases to find defenses where you have a problem?

William Kroger: The main defense is, “Was the substance illegal that you’re trying to charge him for?” Other problems that we’re trying to get over on the case is that in the federal sentencing guidelines, when you have 1 gram of synthetic marijuana for sentencing purposes in in the federal guidelines, it equals over 165 grams of marijuana. So, the penalties that they want to give out are extremely high compared to other drugs. That’s something that we’re trying to work around too and we don’t think the sentencing guidelines really describe what it is. The difference between synthetic cannabis and regular cannabis is just so great, 1 to 165.

Kratom is an Organic Drug Derived From an Indonesian Plant

Interviewer: Any other synthetics which are common?  I’ve heard of Kratom and other types of stuff, what other drugs are mimics?

William Kroger: Kratom’s really not a synthetic, Kratom is actually from a plant that comes from Indonesia. Right now, it’s not scheduled under the federal law and I don’t think there are many, if any, states that find it illegal. Kratom is one of these products like medical marijuana.  A lot of people find very helpful for health reasons and the government hasn’t really accepted it or taken it seriously.  It’s not like marijuana where you can grow it in your backyard.  Kratom has to be grown in a specific climate, it’s hard to get into the country but they haven’t really cracked down on that yet.  We see it probably will be coming but it’s not a synthetic drug at all, it’s a natural drug from a plant.

People Generally Do Not Know the Legal Status of Synthetic Marijuana

Interviewer: If someone’s manufacturing synthetic marijuana and distributing it, are they obligated to know what’s happening with the law?  Is ignorance of a chemical becoming illegal suddenly an excuse to defense?

William Kroger: The problem is that nobody knows it’s illegal. The DEA doesn’t even know that these substances are illegal or if and when they do become illegal, nobody really knows.  So, yes, you can’t really be charged with distributing an illegal drug if you cannot know that it was illegal at the time. That’s an argument that we’ve been raising, how can you break the law when nobody knows that the law is there, not the government, not the people.

Interviewer: Have you had pretty good success with these cases or are they still really hard to defend those items?

William Kroger: They’re somewhat difficult.  Right now, I think we’re doing about fifty-fifty.  At about 50 per cent of our clients have gotten off and the other 50 per cent are still in the works. We haven’t had anybody convicted on any synthetic marijuana cases but there are ones that are still ongoing, but the jury is still out, so to speak.

Synthetic Drug Cases Can be Construed as a Highly Specialized Area of the Law

Interviewer: Have you gotten any specialized training that helps you besides experience to deal with these cases? If someone’s facing that, they wouldn’t want to go with just a criminal attorney, they need someone that has specialized knowledge, right?

William Kroger: Very few people know what their different substances are. They don’t know the different chemical compositions and they don’t know what the Controlled Substance Act is. In fact, it’s a very specialized area of law and I was quickly immersed in it. I’ve dealt with all the topnotch lawyers around the country and read all of the reports from all of the top chemists and talked to many United States Attorneys and DEA agents. I’ve been all around the country on these cases, defending these cases or learning more about them.

Extensive Experience and Knowledge are a Key Factor in Defending Synthetic Drug Cases

Interviewer: How many of these cases in this area have you done and how do they compare to most attorneys that may run into them randomly?

William Kroger: I’ve done probably between 8 and 10 and I’d say most random attorneys haven’t even done one because there are so few people that actually have manufactured or distributed. I got into it very early on and I’ve dealt with a lot of people that are in the industry or related to it and there are very few people that know about it; very few attorneys that know what these cases are all about. We have a listserv that we’ve created that has all the different cases going on around the country and it seems that most of the people hire lawyers that don’t know what they’re doing and they’ve never dealt with the Analogue Act. They don’t know what synthetic marijuana is. For the most part, the cases seem to be either dealt out or they go to trial and they lose and the sentences they’re handing out are pretty high.  I’ve seen some sentences with 180 months attached to it, so it’s pretty big sentence, 180 months in federal prison.

Interviewer: What is the Silk Road?

William Kroger: The Silk Road is an internet underground marketplace group where you can buy anything you want that’s illegal.  You can buy drugs, you can buy guns, you can buy female slaves, you can buy licenses, you can buy passports, you can buy the services of computer hackers. You can buy anything that you want pretty much that’s illegal and that’s tangible and that can be transferred in the mail or by some other mails. People have even bought murder for hire.

There are Several Illegal Underground Market Groups Active on the Internet

Interviewer: Wasn’t that site shut down by the government or there are just other sites that sprung up and do the same thing?

William Kroger: There are several different sites that are sprung up to do the same thing. There’s Black Market Reloaded, there was Silk Road 2 which was just taken down. There are half a dozen other sites that are up right now and doing the same exact thing. The majority of them, probably all of them, only accept Bitcoins for payments and all the sites are very anonymous. To Gain access you have to go through The Onion Browser (TOR). It is a possibility that the government has been hacking into the TOR.  TOR a browser that you use that bounces your IP all over the world and therefore it hides your IP.

The Tor Browser Was Helpful in Military Applications in Helping Government Encrypt Information

So, when you’re talking to somebody through the Tor browser, they don’t know what your real IP address is so they can’t trace you.  The problem is that the government funds the Tor browser because the Tor browser was helpful in military applications in helping the government encrypt their information that they’re providing to the military. It was supposed to be encrypted from the government or hidden from the government as well because of the way that they always hid the IP address and just dispersed all the signals across the globe. The government can locate people on it and can trace IP addresses through the Tor browser.

The Government Has Stepped Up Efforts to Hack Into the Tor Browser

Interviewer: It’s because they were involved in the development of the technology and so that’s why they’re constantly working on breaking it?

William Kroger: Right.  They’re constantly working on breaking into it and hacking it because they’ve also put a lot of money into it to start it, which is very interesting. A lot of people are starting to fall from the Silk Road for a number of reasons; one of which is the government hacking.  In the original Silk Road case, when William Ulbricht was arrested, he made some common mistakes where he put his real name and some postings earlier on when he was developing the Silk Road and they were able to follow that and locate him and make the arrest. A lot of people don’t understand that the DEA and the FBI always work together and when you think about the DEA or the FBI, you think about the guys on the streets with the guns in the DEA jackets and everything but the majority of DEA agents and FBI agents are in the office acting as analysis providing information to other agents.

The Majority of DEA and FBI Agents Are Analysts Sitting Behind a Desk

They’re analysts, they take all the information that the people on the streets gather and they put it in the computer and they crunch the numbers. They’re very good and they’re very smart people in finding answers they’re looking for. There’s an estimate that there are 8,000 DEAs around the world and I think a good two-thirds of that or more are analysts. So, it’s like when you’re watching 24 on TV and you see all these people in the room behind the computers, that’s really what the DEA is like. It might be not such a beautiful comfortable room as they portray in 24 but that’s what they do.  They count numbers, they figure out the problems that the agents on the street have. And then they find answers and pass the information on.

FBI and DEA Agents Are Constantly Scrubbing Databases For Information

Interviewer: Are they using science and computers and algorithms and data manipulation and all that to try to find out what people are trying to hide?

William Kroger: Yes, they’re scrubbing databases. They’re doing deep-scrubs to database and finding out everything.  You can’t keep a secret from anybody in this world anymore, all of your email, all of your text messages, everything you have on your phone or on your computer at home, even though you delete it, it’s still there. Trained people who know what they’re doing and have the software to do it can get anything off your computer that was ever on it.

Interviewer: What is the law concerning sending drugs or controlled substances through the mail?  What do they call it and what are the penalties?

William Kroger: It depends on what kind of drug there is.  If it’s just a marijuana and it’s gone from California to New York or something like that and you get caught with it, there’s a good chance that the case will be dropped. Let’s say you got a package on the FedEx and you hand this to the person at the counter. The person at the counter takes it, then he throws it in the back and the person in the back room puts it on some shelf. Then the guy comes from the truck, loads from the backroom to his truck and then the guy in the truck drives to the storing center where someone else unloads the package and it goes on the conveyor belt.

The Chain of Custody is An Important Issue In the Defense of a Drug Trafficking By Mail Case

Somebody in the storing center puts it in where it’s supposed to go, if it’s supposed to go to Tennessee, it goes in the Tennessee pile. From there, it gets loaded on to a truck, taken to the airport, offloaded onto the plane and then the whole process starts over again from where it landed.  So, the chain of custody is the issue that we argue a lot. How do we know the FedEx didn’t tamper with the box?  So, that seems to work quite a bit because we got 10 or 15 different hands touching it and they can’t prove that they didn’t add something or take something out of it.

People Generally Avoid Mail Shipments During The Holidays For Fear Of Cargo Being Stolen or Misplaced

That’s why it’s ironic but most clients who deal with sending packages in the mail refuse to send anything around the holiday season because you get a lot of temporary employees working at FedEx and UPS and they are more likely to steal something from a package than as someone who’s got a fulltime job there and is trying to work for these benefits.  So, a lot of people won’t ship over the holidays which is kind of odd but yes but if you think about it, it make sense.

Drug Trafficking by Mail Would be Charged as a Broad Conspiracy to Distribute

Interviewer: If someone’s going to be prosecuted though, what is the law called that they would — is it mail fraud or what do they call it?

William Kroger: It would be a broad conspiracy. It’s typically in the federal government. We’ve got to do it a lot of times and we’ve got to find a lot of weight and then just charge them with conspiracy to distribute controlled substance.  In State Court, it would be transportation or sales of a controlled substance; under the California Health & Safety Code, depending on what drug, 11360, 11378, 11351. It all depends on what kind of drug it is.

Crimes Committed Using the Internet are Commonly Charged As Cyber-Crimes

Interviewer: What about if we use the internet to commit a crime or computer as electronic networks, is there anything specific that addresses that?

William Kroger: Yes. There is cyber-crime. There is a whole branch of the DEA and the FBI devoted for cyber-crimes along with IRS.  They all deal with cyber- crimes, they deal with drugs, they deal with money, and they deal with anything illegal through the computers.

Bitcoins are a Valuable Commodity and Should Not be Associated With Criminal Activities

Interviewer: Do you advise people not even to get involved in using Bitcoins at all because it’s associated with only illegal activities or is that not a problem?

William Kroger: No. As far as Bitcoins are concerned, they are a very valuable commodity.  The use of Bitcoins in the sales of drugs is vastly outweighed by its normal usage in everyday good.  There’s hundreds of websites that take Bitcoins now. There are large department stores where you can buy tickets to go see a Lakers Game or Clippers game.  There are a lot of uses for Bitcoins and Bitcoins are being made more and more legitimate as time goes.  You can use them to buy illegal drugs from the internet but Bitcoins can be used for everything else. That’s why there are big companies involved with Bitcoins, many large financial institutions on Wall Street have stakes in Bitcoins.

Interviewer: Have you been running into any cases that are all related to buying things online illegally?

William Kroger: Yes. I actually have a couple of cases right now that involve Silk Road and involve the Silk Road 2 and involve the Black Market Reloaded. One of them has been charged in federal court and two are pending charges in state court.  My client in federal court is looking at life because of his prior history but when he was arrested, he had several ounces of methamphetamine, several ounces of heroin and several ounces of marijuana on him. He had everything that you could possibly want if you were the recreational or habitual drug user.

The Common Criminal Offenses Related To Silk Road and Similar Websites

Interviewer: What kind of crimes have the people you have seen involved with this have been charged with?

William Kroger: Conspiracy to distribute controlled substances. I’ve seen possession with the intent to sell controlled substances, actual sales of the controlled substance, there’s weapons charges, fraud charges, and it also involves the online sales of drugs through one of those websites. When the courts do see them, they’re not really happy that people are doing this online. You could go on today if you’re able to go on at the Tor browser and you knew what website to go to, you can buy anything you want and have it in the mail, maybe even delivered on a Sunday like with Amazon.

The Government is Concerned About Illegal Activities Being Performed Online

I know you can gift stuff shifted to them and deliver it on Sunday, and you probably could with one of these websites but you can get it overnight essentially, any kind of drug you want. The problem the government has is there might be some 14-year old kid ordering up some methamphetamine or some heroin or even some cigarettes or marijuana or whatever and it’s going to come to him in the mail and nobody is going to know about it.  In fact, we have cases like that where the package was supposed to be delivered to this kid but his dad was the one who took the package and that’s how the case started.

The Potential Avenues of Viable Defense In Silk Road Related Cases

Interviewer: Where do you anticipate you’re going to look for defense in these kinds of cases?

William Kroger: We crunch the numbers and we get our own computer experts to analyze the scrape the data that the government is using to tie our clients to the packages.  We have to trace them back and try to poke holes in their case. How do we know this IP address belongs to our client? What is the chain of custody?  The big problem for the government is they’re not going to be able to substantiate how many packages they sent unless they find ledgers as most sophisticated clients encrypt their data.

Most of the People Arrested in Conjunction with Silk Road Cases Possessed Illegal Substances in Substantial Quantities

Most of these people are pretty smart and although their computers are encrypted and they think they’re password protected, the government will probably get through those passwords and their encryption and they’ll find out all the records. The main problem is that most of them, when they get caught, they have a good supply of controlled substance on them whether it’s in their apartment or it’s in their car, they’ve got it.  In some cases, I’ve seen the government go in and find their Bitcoins wallets and take the Bitcoins and seize those as well.