Illegal Botanicals (U.S.A.)

[Stonehenge]

Amom, I disagree totally with what you are saying about the plants themselves being illegal. This has been discussed elsewhere, perhaps you would like to start a new thread for that? I would like to see a single case in which this happened. You say:

"For example, the only way that you can legally grow San Pedro is to convince a court that you didn't know it contained mescaline"

They are sold in home depot, many other places and grown all over the country. Show me one case where simple possession of the plant absent evidence of extraction resulted in a prosecution let alone a conviction. Same with poppies and so on. I've had this discussion with others and they always end up saying that their interpretation of the law is correct and the fact that it never happens is beside the fact. Did you know that star jasmine contains ibogaine, a scheduled substance? A schedule 1 substance in fact? This too is widely grown and widely available. The number of plants commonly found which contain some illegal substances is very high.

[boomer2]

In Hawaii, a woman in her 80s was charged with importing marijuana seeds into the United States as bird seed, which is basically legal in most states, bird seed that is, however, marijuanja seeds are against the lawn,

I cannot find the case but the prosecutor was described as an asshole.

Here is a law allowing military religious use of peyote.

"Military Will Allow Religious Peyote Use"
The Seattle Times, April 16, 1997
by Martha Mendoza

ALBUQUERQUE, N.M. - Native American soldiers will be allowed to take the hallucinogen peyote as part of their religious ceremonies under new guidelines adopted by the military.

Yesterday's announcement ends years of pain for Marine Staff Sgt. Shawn Arnold, who said he had been told not to practice his faith.

"I wake up every morning, and I don't have that full feeling of freedom because I have to consider that hey, anytime, it could be this day that they decide to prosecute me," said Arnold, 38, a platoon leader at the Quantico, Va., Marine base.

Arnold, who hails from the Navajo reservation in Shiprock, N.M., said he had twice been threatened with court-martial because of his religion.

Peyote is a small cactus with psychedelic properties that grows naturally in southern Texas. While it's illegal for most people, federal law permits peyote use by the 250,000 Native American Church members.

The theology centers on the belief that peyote brings peace of mind, helps people think good thoughts and heals illnesses if one sincerely believes and concentrates.

The change in policy was hailed by Frank Dayish, president of the Native American Church of North America.

"This opens some doors for our church, and it marks the first sanctioned use of a hallucinogen by members of the armed forces," Dayish said.

The new peyote policy applies to any of the 9,262 Native Americans in the service - 0.6 percent of the military population - who use the drug to follow their faith.

"If they're using peyote in their religious practice, it's a sacrament, not a drug, just as sacramental wine is not considered a drug," said Air Force Maj. Monica Aloisio, a Pentagon spokeswoman.

The policy change stems from the 1994 American Indian Religious Freedom Act, which allows Native Americans to use peyote as religious sacrament.

The guidelines, which allow Native Americans to answer "No" when asked if they have ever used drugs, still are being drafted.

Peyote is usually eaten but can be smoked. It causes sweating, heightened attention, wakefulness and - sometimes, but not always - hallucinations.

Only enrolled members of Native American tribes may use peyote, the guidelines say. It may not be used, possessed or brought aboard military vehicles, vessels, aircraft or onto military installations without permission of the installation commander.

Chaplain Capt. Mel Ferguson, executive director of the Armed Forces Chaplain's Board, said Native Americans may use peyote in religious services while the guidelines are being finalized.

"When people are allowed to practice their faith and nourish the spiritual dimension of their lives, that promotes and enhances military readiness," Ferguson said.

And teen gangs selling drugs.

Blame It On Prohibition - Morris, NJ Teens Run Drug Rings
"Morris cops find teens running drug rings
Students more comfortable buying from peers"

The Star-Ledger [Newark, NJ], April 6, 1997
By Margaret McHugh
Star-Ledger Staff

Teen gang Morris County's escalating teenage drug problem has taken an alarming twist in areas like suburban Mount Olive, where youths are setting up shop as dealers and are drumming up business from area high schools.

There's been a big boom since the beginning of the year," said Lt. Mark Spitzer, who heads Mount Olive's narcotics unit.

In the past six weeks, police broke up two organized teenage drug rings and are investigating four similar cases in which youths are selling cocaine, heroin, marijuana and "club" drugs - such as Ecstasy and "Special K" - to other children.

Two drug operations headed by teenagers in neighboring Roxbury and Washington Township were infiltrated in January by undercover detectives, who arrested 11 people and seized $3,000 in LSD, marijuana and heroin and $2,200 in cash.

"This is new for us. It's never been this organized," said Mount Olive Officer Joseph Kluska, department spokesman.

The problem is countywide, Morris Country Prosecutor John Dangler said. "We're seeing more and more cases" in which teenagers "are the ones doing the major distributions," rather than just working for adult drug dealers, Dangler said.

"The common denominator is the age group: The extremely young, brazen crowd," Mount Olive narcotics Detective Michael Patchunka said.

Lt. Thomas Polio, who heads the prosecutor's narcotics task force, said more teenagers are going to New York and other cities for "raves," all-night dance parties where drugs are sold openly.

"It's the open-air market coming to suburbia," Polio said. "They think, `If they can do that there, we can do that here.'"

'Teenagers are playing the middle man," buying drugs in New York City, Paterson, Newark and East Orange and re-selling them in Morris County, Spitzer said.

A 18 year-old recovering drug addict named Jason, who also dabbled in dealing, said there is a comfort level in buying from peers.

"I felt I could trust them a little more, said Jason who twice bought marijuana from teenagers in Mount Olive and often bought cocaine from both teenagers and adults in his hometown of Morristown.

Jason, who has been in a residential drug treatment program at Daytop Village Inc. in Mendham for 10 months, said he used to buy drugs in restrooms in Morristown High and even in classrooms. While in class, he would place money in a textbook, pass it to a classmate, and the book would come back to him with cocaine in it, he said.

More than 50 Mount Olive teenagers were counted among the customers of the two raided teenage drug operations in Mount Olive, and those in Roxbury and Washington Township.

Police arrested six Mount Olive teens and a 14-year-old Parsippany boy Feb. 28 on charges of running a small-scale drug operation out of a Brewster Place home in the Flanders section.

Detectives bought drugs during a two-month investigation and then seized a 1985 Dodge Daytona which police say was used to transport some of the suspects to and from suppliers in New York.

Police raided the Brewster Place home and seized five bags of crack cocaine and two bags of marijuana, as well as drug paraphernalia.

Three weeks later, two Mount Olive High students and an 18-year-old man who had attended the school were arrested in a drug-dealing operation.

Police raided the home of Mark J. Jaskulski, who lives with his grandparents, on March 22, and arrested Jaskulski and a 16-year-old girl on charges of cocaine possession and possession with intent to distribute. A 17-year-old boy was arrested two days later at the high school.

The Washington Township teenager believed to be selling heroin from his home had once bragged to police that "there's nothing you can do to me," Detective Patchunka said.

Punishments for juveniles are much less severe than those for adults, said Prosecutor Dangler, who feels that must be changed to stop the teenage drug trade. But he's not sure how that can be accomplished, he said.

Getting caught selling drugs has got to be made "an unpleasant experience, (so) they don't want to revisit the juvenile justice system," Dangler said.

All types of juvenile crimes in Morris County are on the rise climbing from 800 juvenile prosecutions in 1995 to 1,100 last year - and 75 percent of them are linked to drugs, the prosecutor said.

[Note the teens were apparently not trafficking in alcohol or cigarettes, which are regulated. - ed.]

There are hundreds of such news items on the internet about teens and selling illicit drugs.

A few days ago some kid at a 7-11 tried to get me to buy him a pack of cigarettes.  anyone who would do this for a kid can go to jail.  For a kid to think an adult is stupid enough to do so is usually a sting from a cop watching from across the street or in a car near by.  I have seen idiots busted near the cigar pipe and bong shop with the american Indian sculpted statue on the U Ave before over buying cigarettes,  once when a kid asked an undercover cop to buy him a pack.

They do street drug stings on the ave every now and then.

Ten years ago, they have these portable jail vehicles and parked by Tower Records and would bust the crack and pot dealers on Friday and Saturdays on the Ave, including many shoplifters.  A majority of these people who dealt drugs came form the south side of Seattle to the U-District to sell their drugs.

If you live in Seattle and know the district then you can tell the dealers who hang out at the bus stops near the rite aid aand father up near the jack in the box.

Anyway, some have botanicals and some have chemicals and a larger portion were shop lifters.

Today they no  longer have the portable jails there but they have cop punishment patrol (bicycle fuzz). I call them the punishment squad because I think that those who ride bikes did something wrong. If you are a cop and can ride in a car, I doubt that many would request bicycle patrol.

boomer2

[Stonehenge]

Boomer, we all know pot is illegal. I'm not sure what your point is on that with the pot seed issue? You seem to toss in a lot of irrelevant stuff. Teen gangs, sure, but cigarettes, what has that to do with anything? Was there a question about the fact that kids commit crimes? Why did you bring that out, is it to say pot should be illegal?

[Amomynous]

Stoney,

Like I said, I'm not a lawyer, so if you're really interested, you should ask one. But here are a couple of things to consider.

First of all, the following is a new article that describes a couple that was arrested for growing poppies:

The Poppy Paradox. It originally ran in the San Luis Obispo County NewTimes. A few salient quotes from it:

Asked why the poppy charge was dropped, Dennis Schloss, the deputy district attorney prosecuting Dunbar and Harrison, said, "I was not satisfied that we had adequate proof of knowing possession of opium in that case."

In other words, the charges were dropped because the prosecutors didn't know if they could demonstrate the knowledge that the plants contained a schedule 1 substance, thus substantiating my claim that the defense that works is the white-haired one, not the "I didn't extract" one.

Some more quotes:

Schloss is more certain about answers to questions that many innocent gardeners wouldn't even know to ask.

"Is it possible to possess opium while it's still in the poppy? Of course," Schloss said.

...

Nonetheless, our country's drug laws put possession of the opium poppy - just the plant, regardless of whether the drug has been extracted - in the same felony category of such Schedule II narcotics as cocaine, morphine, and methamphetamine.

...

Unfortunately, a large bed of these flowers is a felony, even for the gardener who never intends to extract the opium and who bought the seeds from a company that didn't even identify the Papaver somniferum as the opium poppy.

...

"The law does require `knowing possession,'" said Schloss.

What of the gardener reading this article, or otherwise learning the opium poppy's secrets? With that knowledge, the gardener goes from growing flowers to committing felonies without any change in her actions.

But enough about poppies. What about some other substances?

The following was published in 2002 in the Atlanta Journal Constitution, about a case that some here know about, and describes a man who was arrested for the importation of certain plants:

Pate also noted that DMT exists naturally in other plant life, including some grown by the U.S. Department of Agriculture to prevent soil erosion, and in the human body.

But [US Magistrate] Baverman found that the Controlled Substances Act, while not specifying the vines or leaves as illegal substances, covers "any material" that contains DMT. "When Congress speaks clearly, the court must follow what Congress has stated," the judge wrote.

It is very clear that the Controlled Substance Act treats a plant containing a controlled
substance as a controlled substance. What's more, if you look at the act, you will see (section 802(22)):

The term 'production' includes the manufacture, planting, cultivation, growing, or harvesting of a controlled substance. (emphasis added)

So planting is the same as production, and plant is the same as the substance, therefore growing a plant is the same (in the eyes of the law) as producing a drug. And as was shown in the case of the poppies (above), what matters is demonstrating knowing intent -- that is, if you know the plant has a controlled substance, you can be arrested.

You can disagree with me, but the law is very clear.

And I never said that you would be arrested for growing a plant. I said that you could be.  Yes, the Home Depots of the world have lots of mescaline cactus. But that doesn't change the law.

[Anonymous]

And I never said that you would be arrested for growing a plant. I said that you could be. Yes, the Home Depots of the world have lots of mescaline cactus. But that doesn't change the law.

No but it makes it a crazy fucked up world.

We as human beings... should have the right to cultivate any botanical we please...

[laughingwillow]

We should, but we don't.

And from this cheap seat, there are three options......

1 - Walk the walk.

2 - Talk the talk.

3- Walk and talk.

Most realize the first two are mutually exclusive. Take Carl Olsen, for instance. Carl walked rasta the walk for many years. Then he got busted big time. After that, he decided to talk the talk as an advocate for legalization of da kine. However, Carl knows he is no longer able to walk that walk. Not if he wants to talk that talk. Too much risk to his freedom. Especially after a first strike.

Which leads us to choice #3.....

This is the quickest rout to incarceration, imo. Walk a walk frowned upon by our esteemed gubmit and shout it from the rooftops. Post pictures on the net and make public attempts at purchases involved with the walk in question. And maybe don a symbolic ghost shirt of worthless paper.

In nature, an injured herd member attracts the attention of predators. Fortunately, its usually only the weak and injured that get taken down. But that's not always the case.

lw

[Anonymous]

Yes L.W. I'm just a little injuryed lamb...

BAAAAAA!!

Aahahahahah!!!

[laughingwillow]

The little injured lamb drawing predators attention to the herd.

lw

[Anonymous]

An excellent metaphor.

[Stonehenge]

Amom, you have brought up a case involving importation. That is not what we are talking about here. The ruling you cited, although you gave no link so we could see what circumstances were involved, is about a totally different type of situation. It would have precedent in the circuit or district that that particular court covered. It would not set precedent in any other district and certainly not for the whole country. Only a US supreme court ruling has that kind of authority. So while interesting, it's a case that does not cover the kind of situation we are talking about and would not have any relevance except in the area of that court's jurisdiction.

Then we have the case in which someone was charged with possessing opium in the form of poppies. Congrats on finding that one case, shows the power of google, doesn't it? However, even in that case the charges were dropped. Cops can arrest people for anything they like, then it's up to prosecutors to decide whether to go forward. Even then, there is the option of a false arrest lawsuit or malicious prosecution lawsuit if someone is falsely or improperly prosecuted or arrested.

Naturally, the prosecutor is not going to say there was no basis to charge the people in the first place. That would be like admitting he blundered. He is no doubt embarrassed to have to drop charges after having the poor people arrested and he hopes to deflect any lawsuits by claiming he was on solid ground. Not solid enough to go to trial, which tells you a lot all by itself. I see a newbie or overly zealous prosecutor here. We don't know if there was a lawsuit afterwards or not. I find it interesting that this is the only case you could come up with. Did you try findlaw? Clearly, this did not pave the way for similar charges or a crackdown on poppy growing.

You are entitled to your opinion and you may even find a lawyer or two who will be of the same opinion. It's a rare issue that does not have opinions on both sides. The fact of the matter is that people are not being charged with growing poppies, cacti or other plants containing illegal substances. Star jasmine is grown all over and even knowing it contains ibogaine does not make it illegal. Try getting the cops to charge someone who grows it, or cactus, poppies etc. It matters not if they know it contains illegal things.

What would make a difference is if they had intent to extract the illegal substances. Clearly, if they were caught extracting that would be enough to charge them with. Normally, under conspiracy laws the person must make an overt act of some kind before they can be charged. You could make the case that if they stated their intention to do an extraction, they might be charged. I would call that an extremely weak case. Prosecutors rarely take weak 'fluff' type cases like that unless they also have something else to charge them with and can use that as a bargaining chip. "We will drop that if you plead guilty to xyz", that sort of thing.

Another reason they won't do it is because of selective prosecution which opens them up to many constitutional and other challenges. If they pick you out of all the people doing it to prosecute, why did they pick you? That is a whole other issue.

There are tons of laws still on the books that are no longer being prosecuted. Is it still against the law to wear the color red on sundays in rural Alabama which may have such a law or other silly outdated laws on the books? No, it will not be prosecuted and if it was, it would not stand up and I see a juicy lawsuit coming out of it if any prosecutor was foolish enough to try.

As I say, you are entitled to your opinion but the fact is, no one is going to jail for any of those things.

[Anonymous]

I agree and I believe your pretty much safe to grow any botanical you please.

Good post Stone.

[Amomynous]

Amom, you have brought up a case involving importation. That is not what we are talking about here. The ruling you cited, although you gave no link so we could see what circumstances were involved, is about a totally different type of situation.

Understood. I brought it up to illustrate a point that is often disputed here -- that the plant can be considered the substance. You've done the same thing (speaking about arcane laws in Alabama, for instance) so I would have thought that the intent would have been understood.

I didn't post a link out of discretion for a member here (who was involved in the case). I'll PM you the link if you would like.

Then we have the case in which someone was charged with possessing opium in the form of poppies. Congrats on finding that one case, shows the power of google, doesn't it? However, even in that case the charges were dropped.

I quoted one case (the first that came up) because you had asked for one case. The search results imply that there are others, too.

I imagine the charges were dropped because they also found marijuana growing, and that would be a lot easer to prosecute. The prosecutor may have been inexperienced and over-enthusiastic as you've said,  but in his shoes I would have done the same thing. Demonstrating knowing possession with MJ is a no-brainer.

You are entitled to your opinion and you may even find a lawyer or two who will be of the same opinion. It's a rare issue that does not have opinions on both sides. The fact of the matter is that people are not being charged with growing poppies, cacti or other plants containing illegal substances. Star jasmine is grown all over and even knowing it contains ibogaine does not make it illegal. Try getting the cops to charge someone who grows it, or cactus, poppies etc. It matters not if they know it contains illegal things.

Well, we'll just have to disagree. At least I've quoted some people in the legal profession and some relevant sections of the CSA to support my position. I respectfully challenge you to do the same. I understand that the law is complex and really only clarified in court, but if you, like me, can find a published reference to a DA or prosecutor who says something different than what I've said before, then I'd be surprised. For example, someone who says (as you've claimed) that intent to extract is the deciding factor.

Another reason they won't do it is because of selective prosecution which opens them up to many constitutional and other challenges. If they pick you out of all the people doing it to prosecute, why did they pick you? That is a whole other issue.

I happen to agree here.

As I say, you are entitled to your opinion but the fact is, no one is going to jail for any of those things.

We really don't disagree as much as you seem to think. As I've said before, the legal risk is obviously very low, and I know at least one lawyer who interprets the law the same as I do that grows botanicals with scheduled substances.

But "won't" vs. "can't" are different things. And I think it is important for people to realize they could -- even if it would be extremely unlikely. Like they say, knowledge is power. And even though it is very unlikely, it's more likely -- given our current political and legal environment -- than getting arrested for wearing red on Sunday.

[Amomynous]

I agree and I believe your pretty much safe to grow any botanical you please.

Cool. Have fun with your peyote/cannabis/coca garden.

[Anonymous]

Don't forget 'Shrooms, Khat, Poppies and Iboga!!!

The Following Botanicals Are Illegal in the U.S.A.-

"'Shrooms" ~ Psilocybe Mushrooms  

"Peyote" ~ Lophophora williamsii (Whole Lophophora genus in CA)

"Khat" ~ Catha edulis (Rumors of Khat being legal to cultivate)

"Opium Poppy" ~ Papaver somniferum

"Iboga" ~ Tabernanthe iboga

"Coca" ~ Erythroxylum coca

"Marijuana" ~ Cannabis

(Salvia D. in some States)

I'm not missing any illegal botanicals am I?

[Stonehenge]

Teo, you are not safe to grow any clearly illegal plants or fungi. You know better.

Amom, you speculate that maybe the poppy charges were dropped because they had something else "easier" to prosecute. I speculate that it was because he did not want to be sued. The fact is, and you agree on this, that the charges were dropped and not moved forward.

"I understand that the law is complex and really only clarified in court"

That is correct. Case law is considered more important than the statute itself. Until a law, or interpretation of a law, is tested in court, it is considered unreliable and few prosecutors will want to be the first to go forward. Courts can decide that when the law seems to say A, it really means B. They can also strike down portions of the law or the entire law itself. The fact that the one time it was brought to charges and then dropped, tells you the prosecutor did not like his chances of it leading to a conviction and more importantly, withstanding appeal.

You questioned "intent" that I brought up. Intent is a very important part of the law and comes from common law which much of our present day law is based upon. Intent is an important part of the mens rea or criminal state of mind needed to establish guilt. Here is a quote from wikipedia which does express the essence of the law while being simple enough for lay people to easily understand. I can dig up a more technical definition but this will do.

"In criminal law, mens rea â€" the Latin term for "guilty mind"[1] â€" is usually one of the necessary elements of a crime. The standard common law test of criminal liability is usually expressed in the Latin phrase, actus non facit reum nisi mens sit rea, which means that "the act does not make a person guilty unless the mind is also guilty". Thus, in jurisdictions with due process, there must be an actus reus accompanied by some level of mens rea to constitute the crime with which the defendant is charged"

So as you see, an intent is usually required along with some overt act in order to be guilty of a crime.

I have no doubt that some prosecutors will agree with me on this but I'm not sure if any are on record as saying so. It would be like a republican saying the democrats are right and the repubs are wrong.

Go do your search and find me a case in which someone was charged just for cultivating poppies or any of the plants I've mentioned without evidence of extraction or illegal use. If not, it falls into the same category of unprosecuted crimes we have already discussed and which you seem to agree would have many defenses including selective prosecution.