United States v. Al Sharairei

646 F.Supp.3d 987

UNITED STATES of America, Plaintiff, v. Mohammad AL SHARAIREI, Defendant.

No. CR14-63-LTS

United States District Court, N.D. Iowa, Cedar Rapids Division

Signed December 14, 2022

Dan Chatham, Matthew J Cole, Adam John Vander Stoep, US Attorney's Office, Northern District of Iowa, 111 7th Avenue SE, Box 1, Cedar Rapids, IA 52401, for Plaintiff.

Jill M Johnston, Federal Public Defender's Office, 222 Third Avenue SE, Suite 290, Cedar Rapids, IA 52401, Melanie S Keiper, Federal Public Defender's Office, 400 Locust Street, Suite 340, Des Moines, IA 50309, Mark C. Meyer, Kinnamon Kinnamon Russo Meyer, 425 2nd Street SE, Suite 425, Cedar Rapids, IA 52401, Adam John Vander Stoep, US Attorney's Office, 111 7th Avenue SE, Box 1, Cedar Rapids, IA 52401, for Defendant.

ORDER ON DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL OR NEW TRIAL

Leonard T. Strand, Chief Judge

I. INTRODUCTION

This matter is before me on a motion (Doc. 141) in arrest of judgment¹ or, in the alternative, a new trial by defendant Mohammad Al Sharairei. The Government has filed a resistance (Docs. 151, 154). Oral argument is not necessary. See Local Rule 7(c).

II. FACTUAL AND PROCEDURAL BACKGROUND

Al Sharairei was charged in a superseding indictment (Doc. 40) with:

• Count 1 - maintaining a drug-involved premises in violation of 21 U.S.C. § 856(a)(1)

• Count 2 - conspiracy to distribute controlled substance analogues in violation of 21 U.S.C. §§ 841(a)(1) and 846

• Count 3 - engaging in monetary transactions in property derived from specified unlawful activity in violation of 18 U.S.C. § 1957

• Count 4 - conducting an illegal gambling business in violation of 18 U.S.C. § 1955.

Doc. 40. Counts 3 and 4 were later dismissed upon the Government's motion. Doc. 78. The superseding indictment also contained a forfeiture allegation. Id.

At trial on Counts 1 and 2, the Government presented testimony from 16 witnesses and admitted 38 exhibits (two of which were demonstrative). Al Sharairei presented testimony from three witnesses and admitted six exhibits (one of which was demonstrative). See Doc. 129-1. On September 12, 2022, the jury returned verdicts of guilty as to both counts. Doc. 130.

The Government provided the following testimony relevant for purposes of Al Sharairei's motion. Special Agent Kelly Meggers with the Iowa Division of Narcotics and the Cedar Rapids Drug Enforcement Administration (DEA) Task Force testified regarding the nature of synthetic cannabinoids (SCs) and the market for them. She testified that SCs are drugs that are chemically similar to THC. They are a powdered chemical that is dissolved in acetone and then sprayed on a green, leafy substance. SCs are packaged and sold under a variety of names such as "Scooby Snacks" or "Diablo." The labels indicate they are "not for human consumption." They are typically sold in convenience stores or head shops and advertised as potpourri or incense. Meggers testified that during the 2012-2014 time period, distributors of SCs would utilize commercial laboratories to test the products they were selling. The laboratories would produce "does contain" reports or, more often "does not contain" reports.

Wayne House, a prior special agent criminal investigator with Homeland Security Investigations, testified that he was involved in the investigation of SCs in the St. Louis area in 2012 and 2013. At some point, his investigation became focused on Charles Wolfe. Al Sharairei, as the owner of Puff N Stuff, a head shop in Cedar Rapids, was one of Wolfe's customers. House interviewed Al Sharairei on March 10, 2014, and learned that he began purchasing SCs from Wolfe in June 2013. During the interview, Al Sharairei stated that Wolfe knew all the tricks to getting around legal issues involving the sale of SCs. Wolfe would jingle change in his pockets in case someone was wearing a body wire and he taught clients to avoid using certain language so as not to acknowledge the true purposes of SCs, such as smoking them. For instance, they were to use the term "scents" instead of "flavors" and to talk about how to make the product work better rather than how to increase the high it provided.

Bryan Furman, a Cedar Rapids police officer, testified that he was investigating the sales of SCs in the area in May 2013. On May 28, 2013, he went undercover with Meggers to Puff N Stuff and asked an employee about the different SC products. He purchased two packages and sent them to the DEA laboratory. Furman interviewed Al Sharairei on January 9, 2014, during which Al Sharairei stated they had tested their products in laboratories.

Kenneth Booker, a forensic chemist with the DEA, testified about the lab procedures and the types of analyses he performs on substances that are sent in to be tested. He testified that each of the Government's exhibits that he analyzed for this case contained 5F-PB-22.

Jessie Anderson managed Puff N Stuff during the relevant time frame. She testified about the packages of "potpourri" that were sold at the store. She explained that they did not contain traditional potpourri with dried flowers and plants, but instead a type of plant matter in brightly colored packages that was sold in grams. Some of the names of the packages included "Lights Out," "Freedom," "Head Trip," "Bizarro," and "Devil's Dank." She testified that one of the store rules was that the staff was not supposed to talk about how these products were used. She stated Al Sharairei's wife had posted a disclaimer around the store stating: "All products within are incense and should be discussed as such. Consuming these products is illegal. Referring to them in a consumable way whatsoever can get you removed from this store. Consuming these products is dangerous and probably not the brightest idea. We have the right to refuse service to anyone. Please do not make us exercise it." See Gov. Ex. 7.

Anderson believed that customers were purchasing the "potpourri" to smoke it, partly because of the amount of money it cost. She also testified that customers were not allowed to purchase "potpourri" and smoking paraphernalia together. The "potpourri" or incense was the store's most popular product and generated the most money. She also observed Al Sharairei smoke the potpourri on occasion at work.

Ivan Clay was housed with Al Sharairei at the Linn County jail. Al Sharairei told him about his charges and admitted to trying SCs. He also told Clay he thought he could beat the charges by claiming ignorance. When Clay asked him whether he really did not know the SCs were illegal, Al Sharairei admitted that his cousin had previously gotten in trouble for selling them.

Dr. Trudy Amin, a chemist with the DEA, testified about the Controlled Substances Act (CSA) and emergency scheduling. She explained that part of her job is to review drugs and other substances for their control status under the CSA. She testified that PB-22 is a cannabinoid that became a Schedule I controlled substance in February 2014. She testified that its chemical structure is substantially similar to JWH-018, a Schedule I controlled substance as of March 1, 2011 (under emergency scheduling) and July 9, 2012 (under permanent scheduling).

Amin testified that 5F-PB-22 is a Scheduled I controlled substance as of February 2014. She opined that in June 2013, 5F-PB-22 was an analogue (to the extent it had a similar chemical structure) to AM-2201, a Schedule I controlled substance as of July 9, 2012. Amin then explained how the chemical structures of PB-22 and 5F-PB-22 were substantially similar to JWH-018 and AM-2201, respectively. She explained that JWH-018 has an indole core. At the 1 position, there is a nitrogen atom connected to an alkyl group. At the 3 position, there is a linker, in this case a carbonyl group, that ties the core to a fused ring system. She provided the following comparison in the Government's demonstrative Exhibit 119:

Image materials not available for display.

Amin identified the similarities with PB-22 as the indole core group, an alkyl group at the N1 position, a carbonyl linker and a fused ring system. In terms of differences, PB-22 has an additional oxygen attached to the linker and it has a nitrogen atom that replaces a carbon atom in the fused ring system.

Amin did a similar comparison of 5F-PB-22 and AM-2201, shown below:

Image materials not available for display.

She identified the similarities between these substances as the indole core structure, a substitution at the N1 position with an alkyl group, a fluorine atom at the bottom of that alkyl group, a carbonyl linker and a fused ring system. The differences are that 5F-PB-22 has an extra oxygen atom in its linker group, and an additional nitrogen atom in the fused ring system.

Amin opined that PB-22 has a chemical structure that is substantially similar to JWH-018 and 5F-PB-22 has a chemical structure that is substantially similar to AM-2201. She explained that the extra oxygen on 5F-PB-22 is known as an ester group, whereas in AM-2201, with just the carbon and oxygen, this is known as a ketone. Similarly, the extra oxygen in PB-22 makes an ester group, whereas it is a ketone in JWH-018. In summary, she testified that PB-22 and 5F-PB-22, when compared to their scheduled controlled substance counterparts, are identical but for two atoms.

Dr. Jordan Trecki, a pharmacologist with the DEA, testified about the effects of these substances. He explained that compared to delta-9-tetrahydrocannabinol (THC), these substances (PB-22, 5F-PB-22, JWH-018 and AM-2201) are much more potent because they are considered full agonists, rather than partial agonists, like THC. After outlining his research process, Trecki concluded it was his opinion that PB-22 has a substantially similar effect on the central nervous system as JWH-018 and 5F-PB-22 has a substantially similar effect on the central nervous system as AM-2201.

Heather Harris, an assistant professor of forensic science at Arcadia University, testified on behalf...