Prosecution

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.

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.

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.

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.

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.