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Tom Olsen, Forum News Service, Published September 17 2013

Prosecutor: Duluth head shop owner knew he was selling illegal drugs

MINNEAPOLIS — When the prosecution and defense made opening statements in the Last Place on Earth drug trial Tuesday, it became clear that jurors are going to get a refresher course in high school chemistry.

At issue is what the downtown Duluth head shop sold, when it sold it and what the three defendants knew about the legality of the chemical compounds in their most popular products, known as “incense” or synthetic drugs.

The case is being tried in U.S. District Court in Minneapolis. Once the 12 jurors and two alternates were selected Tuesday afternoon, Judge David S. Doty told them to be prepared for several weeks of complex testimony and evidence.

“This is a very complicated case,” he told them. “Certainly more complicated than most cases that are heard in this courtroom.”

Assistant U.S. Attorney Surya Saxena told the jury that evidence will show that shop owner Jim Carlson, girlfriend Lava Haugen and son Joseph Gellerman knew they were selling products classified as controlled substance analogues — chemicals that are substantially similar to controlled substances in chemical makeup and effects.

Defense attorneys told jurors that Carlson went to extreme measures to stay ahead of the law and that the three defendants had no reason to believe they ever sold illegal products.

The opening statements set up what is expected to be a contentious, three-week trial. Both sides intend to call expert witnesses who will likely contradict one another in testimony about the chemical makeup and legality of the products sold at the store.

Testimony will begin Wednesday morning, when the prosecution begins to make its case. Early witnesses are expected to include former Last Place on Earth customers, employees and Duluth police officers.

Carlson is charged with 55 offenses, including distributing controlled substances and violating product labeling laws. Haugen and Gellerman are each charged with four crimes. It is standard in federal cases to try all defendants together.

Saxena told jurors that the three defendants conspired to sell products they knew were illegal. Making minor changes to a chemical compound does not make a product legal, he said, but rather places it in the category of illegal analogues.

“Whenever a ban of a chemical went into place, the defendants switched a slightly different compound,” he told the jury. “The evidence will show that the chemical composition of these compounds was substantially significant to those that were just banned, and that the compounds had largely the same effects.”

Some of the changes were as minor as changing one atom, Saxena said.

Carlson’s Golden Valley, Minn.-based attorney, Randall Tigue, told the jury that the evidence would show two things: Jim Carlson obeys the law and the trial is an ambush by the federal prosecutors.

“Every time the federal government decided to ban another analogue, they didn’t tell anyone,” Tigue said. “They kept it a secret until the day Mr. Carlson was indicted. The federal government hides the law, hides the facts from the public, and then arrests them for conduct they did not know was illegal.”

John Markham, a Boston-based attorney representing Haugen, said the defense will use expert testimony to show that the defendants never sold products that were substantially similar. The majority of scientists disagree with the Drug Enforcement Administration’s assessment that the store’s products were illegal, he said.

“It’s not against the law to sell something that has not been banned. The defendants will show that the products they sold were not banned and were not substantially similar,” he said. “The DEA can ban butter if they want to, but until they do, you can still sell butter.”

Gellerman and his attorney, Charles Hawkins, reserved the right to present an opening statement until the defense begins to present its case-in-chief.

The 14 jurors were selected from a jury pool of more than 60 in a process that took much of Tuesday morning and early afternoon. Potential jurors were disqualified if they said they had knowledge of the Last Place on Earth case.

At one point, when Doty read an overview of the charges, he asked potential jurors if they would have any problem being unbiased and fair to both sides. Five people raised their hands and were dismissed.

Doty has said the trial is being held in Minneapolis mostly due to the store’s widespread recognition in Duluth. The jury pool in Minneapolis is made up of residents of the western metro area and southwestern Minnesota.