Suspects of Convenience
Faieza Alyas was fixing her husband, Amir, breakfast of lentil soup and crackers when she learned that the Phoenix police considered them criminals.
The day--Monday, September 29, 1997--had started typically for the Iraq-born couple and their two sons, Christian, 15, and Brandon, 11. The north Phoenix family arose early, with Fay--as she's known--readying the boys for school. Amir left about 6 a.m. for the couple's convenience store, E-Z Stop, on 19th Avenue, just south of Glendale Avenue.
The Alyases have owned the store for almost five years. They make a decent living by working relentlessly and by building customer loyalty; their regular customers could just as easily patronize the shiny 7-Eleven store across the street.
Amir and Fay Alyas are proud people, proud of their Chaldean heritage, proud of their children, and proud of the fruits of their hard work.
And they are especially proud of being American citizens.
"It was my dream, the United States of America," says Fay Alyas, crossing herself. "To come here, to feel the freedom. We don't do anything fishy. We work hard, we did good. This was everything good to us. Until this."
The couple immigrated to the States two decades ago, they say, to escape the persecution of Saddam Hussein's Iraq (Chaldeans are an ancient but vibrant Catholic sect). Now in their early 40s, both became U.S. citizens in the mid-1980s, Fay in a Detroit ceremony led by President Ronald Reagan.
Neither has a criminal record, and E-Z Stop has had no liquor violations since the couple bought it.
Amir opens for business each day at 6:30 a.m. Fay comes by the store after the boys leave for school. It's a comfortable routine.
But about 9 a.m. that day last September, three Phoenix police officers rushed into the E-Z Stop.
"A lady policeman come over and say, 'You're under arrest! Don't move!' They put my husband on the floor and put our hands in the--what you call them?--the cuffs of hands. We keep asking, 'What we do?'"
The police marched the couple to a squad car for a trip to the Madison Street Jail, with television cameras capturing the moment on videotape.
"Finally we find out what we do," Fay Alyas says. "We sell too much medicine over the counter--Mini Thins--and we're not supposed to do this. I said, 'Oh, my God. We don't know.' I think of my home country, Iraq. They catch you with drugs, you die, that's it. We not even know word 'methamphetamine' until the government teach us that day."
Her husband adds, "They lock us up for selling cold medicine to secret police. Why the government come to this good family and drag us into their sea of drugs? Mini Thins?"
Ostensibly used to treat asthma and bronchial problems, Mini Thins are packaged in bright-colored pouches. Distributed by Body Dynamics Industries of Indianapolis, the legally approved, over-the-counter drug is nicknamed "trucker speed," because long-distance drivers often use it to stay awake.
The couple spent the night in jail, using their phone calls to assure their sons things would be okay. Then they prayed.
A judge informed the Alyases the next morning of a state grand jury indictment against them:
"From early 1997, [the Alyases] . . . did agree with one or more persons [to] engage in . . . the manufacture of methamphetamine; possession of equipment or chemicals for the purpose of manufacturing methamphetamine; possession, sale, transfer or furnishing of a precursor chemical (ephedrine); and money laundering." (A "precursor" chemical may be extracted from a pill as part of a methamphetamine-making recipe.)
The couple also were charged with "racketeering" and of "knowingly possess[ing] chemicals for the purpose of manufacturing methamphetamine."
Another charge alleged they'd sold Mini Two-Way Action (another name for Mini Thins) pills to an undercover officer--believing he was a doper who planned "to unlawfully manufacture methamphetamine."
It added up to six felonies each, each carrying a possible prison term upon conviction. The judge set the Alyases' bond at $16,000 each. They paid it from their savings, which emptied their account.
They had been snared in a sting by the Phoenix Police Department and the federal Drug Enforcement Administration.
The raids were the Valley's top story that night. News crews tipped off by publicity-hungry authorities had gotten to some of the targeted convenience stores before the cops. It was a classic "show bust," with an official plot line that had television anchors shaking their heads in dismay:
Undercover cops had persuaded the owners and/or employees of "mom-and-pop" convenience stores to sell them cases and cases of Mini Thins. The kicker was that the merchants had known their "customers" were going to convert the drug into meth.
In all, the narcs had bought $102,861 in "precursor" drugs from 21 Phoenix and Glendale convenience liquor stores, after which 39 store owners and/or employees had been arrested.
The Arizona Republic quoted Phoenix police detective Swain Granieri: "We were right out in front that we wanted the Mini Thins to make meth." He said none of the sales had been "over the counter or through the cash register. They were sold to us out the back door. Those people knew exactly why we wanted the drugs and wanted to protect themselves."
Actually, the narcs hadn't used the words "methamphetamine" or "meth" in secretly recorded discussions at the stores. And many sales had been completed normally, cash register, taxes and all. But that evidence wouldn't become known for months.
Police said the nine-month sting--the first of its kind in Arizona--came from a tip that independently owned convenience stores had become a prime source for meth cooks needing the ephedrine/pseudoephedrine in Mini Thins and other such drugs.
"The major stores have figured out this stuff isn't for them," Granieri told the Republic.
Again, the detective was off-base: The super-pharmacies still sell many over-the-counter medications that contain meth precursors. What they'd stopped doing was selling so much to one customer.
And Granieri didn't say the big stores--after years of being the main source for meth cooks--had stopped bulk sales at the friendly urging of law enforcement. Finally, the cop didn't volunteer that the mom-and-pop stores hadn't been afforded that same warning.
Said Arizona Attorney General Grant Woods, "These stores knowingly sold caseloads of the chemicals used to make meth."
Amir and Fay Alyas had sold nowhere near "caseloads." They were charged with selling $382 worth of Mini Two-Way Action, Actifed and Sudafed to the cops over a two-month period.
Other defendants, however, had sold many cases of meth precursor products to the cops. The evidence suggests that several of those charged--especially some younger store clerks--understood perfectly they were selling to avowed meth cooks. (One shop owner--the only American-born of the accused owners--asked the narcs to provide him meth after they cooked. Another clerk promised to provide the narcs up to 200 cases of Mini Thins. Yet another asked the cops how they made the meth.)
At first blush, it's difficult to quarrel with an operation aimed at stanching the production and near-epidemic use of methamphetamine. But a closer look reveals a law enforcement operation with a lot of flash, a little substance and, in some cases--including the Alyases'--creation of unwitting strawmen.
More tangibly, two Superior Court judges assigned to hear the criminal cases ruled recently that the Mini Thins defendants committed no crimes under Arizona law. The judges cited a law that bars prosecution of "persons who sell any non-narcotic substance that under [federal law] may be sold over the counter without a prescription."
Ephedrine and pseudoephedrine products fit precisely into that category, as do the shopkeepers and clerks who sold Mini Thins to the cops.
The judges' momentous rulings led Arizona assistant attorney general Billie Rosen earlier this month to seek dismissal of all criminal charges against the accused.
Rosen says she "never considered that the exemption applied in this type of situation." That's why she'd originally taken the cases to state court, rather than send them to the U.S. Attorney for prosecution under federal law, which contains no such exemption.
Now, Rosen has asked the feds to prosecute the Mini Thins sellers. Federal prosecutors haven't said whether they will.
"I want these cases to be litigated on their merits," Rosen tells New Times. "The vast majority of the cases were in my mind pretty egregious. The police were asked to turn a faucet off in this community, and that faucet was one of the sources for ephedrine and pseudoephedrine that went into the making of methamphetamine. The people at the stores aren't using the dope and they're not selling the dope, but the fact of the matter is they've contributed to the problem."
The estimated cost of the Mini Thins sting, according to law enforcement sources, already is more than $1 million.
Had the drug warriors bothered to distribute a few extra copies of a warning letter that was sent to big retailers, they could have saved taxpayer money and spared some good people a ton of grief.
In late 1996, sheriff's methamphetamine task force members alerted officials of large local stores that over-the-counter cold medications are being used to produce methamphetamine. A letter asked the big retailers to report anyone trying to buy or steal large amounts of over-the-counter cold remedies.
The notice apparently worked: A detective who leads the task force said in February that he stopped seeing as much of a Wal-Mart cold medicine called Walfed at meth-lab busts, and started seeing more Mini Thins.
But the sheriff's detective said the Mini Thins undercover team asked him not to send the informational letter to the "mom-and-pop" convenience stores because it could compromise their ongoing sting.
"If we get notice like big stores, honest to God, we would do what the big stores did," says E-Z Stop's Fay Alyas. "If we get notice, then sell lots of medicine to one guy, we should be in trouble. If we know it is bad to sell too much cold medicine, I tell him to get out."
Prosecutor Rosen doesn't buy that, saying that the wholesale distributors of the cold medicines in several instances sent warning letters to their customers, and that media coverage of cold medicines' relationship to methamphetamine production has been extensive.
Other troubling aspects of the Mini Thins sting also have emerged:
* The police had only scant information that any Mini Thins defendant previously had sold a large amount of the pills to known meth cooks. And investigators have presented no evidence that any defendant sold pills in excess to anyone (other than the narcs themselves) who had proclaimed they were going to cook drugs with them.
* Most of the targeted stores had little or no Mini Thin-type products in stock when the undercover cops first approached them.
* The AG's case presentation to the grand jury was compromised by key omissions and misstatements by police witnesses.
* Many targeted stores are owned by foreign-born people of Middle Eastern descent, whose command of English in some instances is poor. That led to contentions that some defendants didn't know what the narcs meant when they referred to "cooking dope" or "making drugs."
"Did you have any difficulty communicating with [any] . . . of the approximately 16 [arrestees] that you interviewed?" a defense attorney asked Phoenix detective Frank Pina in February. "Oh, yes," Pina replied.
Despite the dismissal--at least temporarily--of the criminal charges, the government continues to attack the Mini Thins sellers with the ferocity it usually reserves for mobsters and child molesters. The store owners are being assailed from every legal angle--criminal, civil, licensing and, potentially, immigration.
State forfeiture proceedings against 16 of the convenience stores and their owners are ongoing. It's a devastating mechanism by which the government may collect sums of money from an accused "racketeer"--and, sometimes, to push the accused into financial ruin.
Whatever happens legally from here, the ramifications to those ensnared by the sting have been staggering: Life savings have vanished, dreams have been shattered. Perhaps worst, at least six of the accused who aren't U.S. citizens may face deportation to Iraq if they're convicted of a felony.
Methamphetamine cooks are resourceful. When the drug warriors shut one door, the dopers invariably open another.
Until the late 1980s, cooks could buy ephedrine legally from chemical-manufacturing firms, then easily convert it into meth. The feds caught on, and Congress in 1988 passed a law that regulated bulk ephedrine sales.
The strong pharmaceutical lobby that year won a key exemption for over-the-counter ephedrine-based products--Sudafed and Actifed are among the most well-known--for which Congress had considered requiring prescriptions.
A DEA white paper titled Methamphetamine Precursor Chemical Control in the 1990s describes how meth traffickers switched to pseudoephedrine after the feds imposed controls on the import, export and distribution of bulk ephedrine powder.
Ephedrine pills and capsules still could be found in large quantities through mail-order distributors who sold the drugs as bronchodilators, energy boosters and diet aids.
In April 1994, the distribution of pure ephedrine tabs and capsules became subject to federal reporting and recordkeeping requirements. That led cooks to turn to over-the-counter cold medicines, many of which contain ephedrine and pseudoephedrine--the building blocks of methamphetamine.
The Comprehensive Methamphetamine Control Act of 1996 attempted to cut off easy access to meth precursor products. It was the first law to limit sale of over-the-counter drugs, and it stemmed from the vast increase in sales of the pills by the large retailers.
Among other requirements, the new law limited an over-the-counter customer per transaction to no more than three grams of ephedrine in a bottle, and to sell no more than 24 grams of ephedrine in a sealed pack.
The new law's focus, a sheriff's detective explained last February in an interview with defense attorneys, is on the bottles, not the packs.
"They didn't feel that meth cooks would go through the problems of busting up the blister packs," said Jeff Eccles, leader of a county methamphetamine task force. "What they forgot is that meth cooks are up for 14 days straight."
And, of course, the law can't stop a diligent meth cook from hopping from mega-store to mega-store around the Valley, collecting enough precursor products to make a batch.
The big stores won a year's grace period from implementing the new law, to educate their employees and reconfigure their cash registers to halt bulk sales. It finally went into effect last October 1, two days after the Mini Thins raids.
Eccles revealed a stunning piece of information to the defense attorneys in his interview. It came after he said he'd told Wal-Mart officials in 1996 that he'd been seeing their cold medicine, Walfed, at many meth-lab busts:
"We had also generated a letter that went out to all the pharmaceutical-based stores."
The letter had alerted the pharmacies that over-the-counter cold preparations were being used to make meth. "We would like to ask for your cooperation in addressing this increasing problem by contacting us," it said.
Wal-Mart went one better, announcing in early 1997 that, "in cooperation with law enforcement agencies," it immediately would limit the amount of over-the-counter precursors that a customer may buy at a time.
"Can you tell me why a letter like this did not go out to the convenience stores?" defense lawyer Eleanor Miller asked Eccles.
"I'd shown . . . or advised [Phoenix police detective] Swain Granieri and [DEA agent] Art Staples of the letter we were preparing to ship out . . . and [they] advised me they were involved in an investigation and they thought it would inhibit or hurt their investigation."
If you're Wal-Mart, you get a year to educate your employees and reconfigure your cash registers to halt bulk sales.
If you're E-Z Stop, you get solicited by undercover narcs.
Birth of a Sting
Phoenix detective Swain Granieri explained the genesis of the Mini Thins investigation in a police report after the big raid.
In early 1997, he said, a confidential informant and other unnamed sources told the cops about retailers selling large amounts of over-the-counter medicines to people "involved in the manufacture, sale and distribution of methamphetamine. Mini Thins were identified as one of the brand names. . . . Involved in this activity were privately owned convenience markets and liquor stores owned primarily by persons of Middle East origin."
Where Granieri got the "Middle East" angle is unclear. Without question, however, the police heard about two of the convenience stores from snitches in the unrelated meth-manufacturing case of Ted Dean Groves.
One of the Phoenix detectives in the Groves case was Tommy Kulesa, renowned for his undercover work with renegade motorcycle gangs. During the Groves investigation, an informant told Kulesa that two independent convenience stores in west Phoenix were selling Mini Thins and like products in bulk to meth cooks. The snitch didn't know the names of the stores or if the retailers knew they were selling to cooks.
But he did provide cross streets. The nearest independent convenience stores to those streets were the Full Mini Mart and the A-1 Food Store. On February 25, 1997, Kulesa and Granieri stepped into the Full Mini Market at 60th Avenue and Thomas and began their undercover mission.
"We approached the stores in a role of persons involved in the illegal manufacture of methamphetamine by dressing, talking and acting as methamphetamine users," Kulesa wrote in a court affidavit. "We determined to explicitly tell, and did tell, the persons with whom we were dealing that we intended to utilize the products we were purchasing to make methamphetamine, using common street terms for methamphetamine such as 'speed' and 'the drugs' and 'dope.'"
The owner of Full Mini Mart, a 51-year-old Iraqi immigrant, sold the narcs a bottle of Mini Thins, according to police reports. He also offered a case--144 bottles containing 100 pills each--of the drug for $500. That afternoon, the detectives returned and bought 10 more bottles, with Kulesa telling the owner he needed it for a pal who was "making dope." The man didn't respond.
Two days later, the detectives returned to the store and asked to buy a case of Mini Thins. This time, the owner led the men into a back room, and Kulesa again told him about "making dope" with the pills.
This time, the man's response was, "Yeah," after which he sold the cops $250 worth of Mini Two-Way Action tablets.
That the suspects in the Mini Thins sting understood the "dope" references was critical to making a case against them.
On March 19, the undercover team bought a case of Mini Thins at Full Mini Mart, and a case of the Mini Pseudo Nasal Decongestant from A-1 Food Store.
By this time, the cops got wind from sheriff's detective Jeff Eccles about two other west Phoenix convenience stores he'd heard were selling over-the-counter medicines to meth cooks.
That two store owners had sold Mini Thins in bulk to men they'd been told were "cooking" meth, and that two other stores may have been selling Mini Thins to cooks, apparently was the catalyst for the cops to broaden the scope of the probe.
"After these transactions were completed," detective Swain Granieri said in court documents, "it was decided that other, non-affiliated convenience-type stores should also be contacted with attempts to purchase large quantities of over-the-counter medications containing ephedrine or pseudoephedrine."
After last September's raid, authorities explained in court documents why they'd targeted mom-and-pop shops and not large chain or convenience stores.
". . . [Officers have] learned that Mini Thins and related products are not known to be sold by any pharmacies or health-care facilities. Conversely, over-the-counter drugs are being sold by privately owned convenience stores and liquor stores.
"The officers had a basis for not contacting corporate chain stores in their undercover roles. They had no basis to believe that these stores were selling large quantities of precursor chemicals knowing that they would be used to manufacture methamphetamine."
But other than the first two targeted convenience stores--Full Mini Mart and A-1 Food Store--the police also had "no basis" to believe that any store owner "knew" that someone buying over-the-counter drugs in bulk was a meth cook.
Furthermore, over-the-counter medications containing the same amount of ephedrine or pseudoephedrine as Mini Thins do remain available at the big stores. An ex-meth cook told New Times ("Methology," December 18, 1997) that, as recently as the spring of 1997, he'd send friends on "drug store runs" to collect pills from which to extract precursors.
Two men who have turned state's evidence in the still-pending Groves case spun a similar tale last month in interviews with defense attorneys.
"Did they go to stores to buy it?" a lawyer asked one of the men, referring to the meth cooks and to the ephedrine/pseudoephedrine pills.
". . . It was the pharmacies that were in Wal-Mart," the man replied.
The man was referring to pre-1997, when many local meth cooks relied almost solely on chain stores for their precursor drugs.
"Did you ever change your stores between July of 1995 and April of 1997?" a defense attorney asked.
"Yeah," the man replied. "There was a liquor store over on Glendale and 59th Avenue called A-1 Market. And they sold the Mini Thins by the basketful. You can buy as many as you want. . . ."
The game was on.
From mid-March through July 7, the Mini Thins undercover team tried to sting as many mom-and-pop convenience stores as possible.
They met with some great successes, such as their trip to Metro II Liquors, at 43rd Avenue and Glendale in Glendale. Its owner bit hard, asking the narcs on tape if they could funnel some meth back to him after they cooked it with chemicals he'd helped to provide.
When it was over, the undercover team had bought 129 cases of Mini Thins and similar products at 21 stores, enough ephedrine/pseudoephedrine to make pounds of methamphetamine.
In their investigation, the police came to focus on one wholesaler, Iraqi immigrant Frank Younadim. During the sting, detectives bought more than 20 cases of Mini Thins products traced to Younadim. The police also learned Younadim's distributor had shipped 80 cases to the Scottsdale man in April 1997 alone. A search of Younadim's storage locker and other locations later yielded more than 50 cases of the products.
That wasn't against the law. But prosecutors alleged that Younadim listened in at one store as the undercover team struck a deal with a retailer. They claimed he's criminally culpable because he must have heard the cops say they were cooking dope with the pills.
(But Younadim's attorney, Bruce Feder, asked detective Granieri last December, "Is it your belief during that conversation, it was specifically discussed that the medications being purchased were for purposes of manufacturing methamphetamine?" Granieri answered no.)
Younadim, 38, was the only wholesaler charged in the case. Those who sold the Mini Thins to Younadim, and the other distributors who sold the precursor drugs to convenience stores, have avoided prosecution.
The drug cops have said in court documents that their game plan was improvisational: Because they had prior information on only a few stores, they'd drive around Phoenix and sometimes Glendale, looking for mom-and-pop shops at random to approach.
"We would determine if they sold the [Mini Thins], and upon receiving an affirmative answer we would determine whether they would sell large quantities of that product," Swain Granieri told a defense attorney. ". . . I certainly believe a case is a large quantity."
After September's raid, police released a list of the 34 independent convenience stores that hadn't bitten. Twenty-five of those stores, however, didn't carry Mini Thins.
Police reports indicate that employees (or owners) at two of those 25 stores told the narcs they could get Mini Thins, but were leery of the suspicious-looking trio. One clerk/owner asked the undercover team if they were cops, and refused to take the dialogue to the next step.
Police have said they erased audiotapes of those efforts that didn't hit pay dirt, so it's impossible to compare them with those that did.
The Alyas Case
May 21, 1997, was a big day in the Mini Thins investigation. The undercover team stopped at 16 small independent convenience stores, including 13 for the first time.
Five stores that day, including the E-Z Stop market, would be added to the list of those already stung by the undercover team.
Parts of the secretly taped dialogue between Amir and Fay Alyas and Detective Tommy Kulesa are inaudible. But it's clear Kulesa pushed the couple hard after seeing a few jars of the Mini Thins on a shelf.
"Do you ever sell, like, cases?" he asks Amir Alyas.
"No, cases no," Amir replies. "That's all I got on the shelf over there."
Kulesa then struck up a conversation with Fay Alyas, as her husband tended to other customers during the late-afternoon rush hour.
"I need like a whole bunch for the ephedrine in 'em," he tells her.
"Mm, hmmm," she replies.
"But that's all you got, huh? Do you ever sell a lot? I need more than that."
"How many you need? I can make you order."
"I need like a case, like 144 bottles."
"144! . . . What they call it, the drug . . ."
"Yeah, the drug people. Yeah."
"No, no, the administration of the drugs. . . . They prohibit this."
That should have ended things right there. But Kulesa wouldn't take no for an answer.
"Yeah, what we do is we take the ephedrine out, we make drugs with it, that's what I'm doing."
Kulesa and Granieri chat with each other for a few moments, then Kulesa turns back to Fay.
"I need to get as many bottles, if it's possible," he then tells her.
"But it's $4.99 a bottle. Is that okay?"
After Kulesa says it is, she pulls two more 12-bottle packs of Mini Thin Two-Way Action tabs from behind the front counter, and tells him she can get more from her distributor in a week.
"A couple cases, too," Kulesa urges.
"Oh, you buy them by the cases?" Fay Alyas asks.
"Yeah, I buy 'em by the case."
"Let me look around and I'll get one case for you," Fay Alyas tells the narc. ". . . Two weeks ago, [the distributor] came by and said, 'Do you still want Mini Thins?' I said, 'No, I got enough.'"
She rings up the total, $192.30, including tax, then puts the money that Kulesa hands her into the cash register.
The undercover team had been in the store for nine minutes.
To the cops, Fay Alyas was a drug dealer waiting to happen. She finds that idea, well, almost funny.
"I kind of hear [Kulesa] say, 'We make drugs,'" she says, "but I don't pay attention because it's not my business. He notice we are stupid people about drugs. Why he take advantage of us? I'm afraid they're going to steal. 'I'll get one case for you' is talk to get them to leave."
(The Alyases' command of English is deceptively flawed. The couple sometimes don't comprehend when people speak too fast or unclearly. But they rarely let on, choosing to mask linguistic shortcomings by smiling or nodding in agreement.)
The first sale consisted of 36 bottles.
Police reports show that was the only time the couple sold the narcs any Mini Thins. But the team returned to E-Z Stop four more times in the next six weeks, trying to interest the Alyases in selling them "cases."
The second visit came June 2.
Fay Alyas tells Kulesa, "I can't get them," referring to the Mini Thins. She tells him she called a lot of people, but no luck. (Fay says she was just trying to pacify the persistent customer.)
On this trip, the cops bought a 12-tablet box of Actifed--which contains pseudoephedrine.
A week later, the drug warriors returned yet again to E-Z Stop, where the Alyases' 11-year-old son, Brandon, was hanging out with his mom and pop.
"I'm still waiting [for the Mini Thins]," Fay tells Kulesa, adding she'll be happy to buy some more Actifed for him.
"We could do that," the cop replies.
"'Cause I talked to the guy about the dope . . ."
"And he says, 'Yeah, we can pull the ephedrine out of that.' He says it's easy."
On July 7, the cops return to E-Z Stop for a final time. The booty: $147.73 of Sudafed and Actifed.
"You don't have any more in the back or anything like that?" Kulesa asks, taking a last stab.
"No, but I, I make order for you," Fay Alyas promises.
Kulesa's report notes she tried to hand him a cash register receipt from the sale.
"I don't a re--, I don't want no receipt," Kulesa tells her, laughing.
The E-Z Stop sting had produced $382.92 in sales--and only half of that from Mini Thins, the investigation's targeted drug.
On September 18, 1997, a state grand jury unanimously indicted Amir and Fay Alyas on major felony charges.
Assistant attorney general Billie Rosen is known in legal circles as a bulldog barrister, usually as a compliment. She's usually well-prepared, and she usually wins.
Rosen's strategy at the state grand jury was to first give the panel a big-picture view of the Mini Thins sting, then to break down the individual cases one by one.
That seemed to make sense, though defense attorneys complained later that it unfairly lumped disparate tales into one.
But grand juries aren't assembled to determine a person's guilt or innocence. They decide whether "probable cause" exists that a crime has been committed, and the individual being investigated committed it.
Grand juries are a one-sided affair--the prosecutor's side--and it's rare for their members to ask more than a question or two. In this case, however, jurors asked several relevant questions, only to get some misleading or outright incorrect answers.
"Are the Mini Thins illegal, or is that the over-the-counter anybody can buy?" a grand juror asked Phoenix detective Ricardo Garza, the official case agent.
"There is two answers to that, yes and no," Garza replied. "They are legal to purchase in small quantities. They are illegal--there are federal reporting requirements when you sell over a certain amount. . . . But in the quantities we were purchasing, it is illegal."
That was false.
At the time, nothing in the law kept a customer from buying as many Mini Thins as a store was willing to sell, and nothing that kept a store from selling as much as it wanted. Prosecutor Billie Rosen agrees with that description, provided store owners didn't know or reasonably suspect that their customer might be doing something illegal with it. (The new federal law limiting sales didn't go into effect until October.)
"If you own a store," Rosen says, "and I come in and want to buy tens of thousands of pills of what are supposed to be cold medication, and I want to purchase it with cash, no less, might not the store owner be charged even above and beyond what the officers flat-out told them? Reasonable people don't go buying that many pills at once, and a reasonable suspicion would be that the buyers are going to do something illegal with it. My officers made it easy for me by telling the people they met at the stores that they were making [drugs]."
Grand jurors also weren't told about the warnings that police had given the big stores.
Finally, the panel never heard about the legal exemption about over-the-counter sales that would spell doom for the Mini Thins case in state court.
Billie Rosen got every indictment she sought over a two-day period. The indictments remained sealed for about a week, when about 100 police officers, television crews and selected print journalists went on a raid.
The owners of the "Mini Thins stores," as they'd been dubbed around the county courthouse, hired the best attorneys they could afford. To many, that meant depleting their life savings, but this was a life-and-death matter to many.
Najib and Anjel Savaya--the owners of Fong's Groceries and Liquor Wheel--had to retain separate lawyers for themselves and three more for their sons, each of whom also had been indicted. (Friends say the legal fees alone have cost the Savayas more than $100,000, devastating them financially.)
Najib Savaya speaks almost no English, isn't an American citizen--though he's been here since 1984--and is one of those who faces deportation to Iraq if convicted of a felony.
In October, a little-known attorney who'd just moved to the Valley from Bullhead City shook things up in the Mini Thins case. Her name was Marsha Griffiths, and her presence in the case was because of the coincidence of looking up old pal Joe Abdeen a few days before the raids.
Though Abdeen himself wasn't charged criminally, employees at two of his stores--Diamond D Liquors and Bell Tower Liquors--had been stung by the Mini Thins undercover team.
Abdeen hired Griffiths to represent three of his employees. (He also retained attorneys to represent three other clients.)
Griffiths soon came upon the Arizona law that exempts from prosecution "persons who sell any non-narcotic substance that under [federal law] may be sold over the counter without a prescription."
That sure sounded like Mini Thins to her.
On October 31, Griffiths asked Superior Court Judge Ruth Hilliard to dismiss the case against her clients, in part because prosecutors hadn't informed the grand jury about the exemption defense.
Several attorneys involved in the case more experienced than Griffiths admit privately that the exemption defense had slipped by them. Eventually, however, every defense attorney in the case adopted her legal position.
"Defendant presents a beguiling tale," Billie Rosen wrote in response, "of a . . . [law] that drastically limits the authority of drug enforcers by creating an exemption that blasts a hole . . . large enough for a person who has knowingly provided necessary precursor chemicals for the manufacture of methamphetamine to walk through untouched by the law."
Rosen claimed the exemption had sprung from a tough 1987 drug-enforcement package then-governor Evan Mecham personally had touted at the statehouse.
"Nothing in the exemption ties the sale to a particular premises," she continued, "so a person could drive a truck around Phoenix with a huge sign on the side proclaiming 'Cocaine, methamphetamine and marijuana for sale,' as long as he sold aspirin with every sale. . . . Here, the knowledge that the product was going to be used in the production of methamphetamine negates the exemption. . . ."
Both Judge Hilliard and Judge John Sticht--the latter who presided over some Mini Thins defendants--filed their analyses of the exemption law--Hilliard on February 27, and Sticht on March 11. Hilliard wrote, "in order to give guidance to counsel for further proceedings."
Hilliard: "The court's reading of [the exemption law] allows no charges to be brought under the criminal statutes stated when the non-prescription medication may lawfully be sold under the federal act. The court notes that the [law] does not preclude its application to a seller who knows or has reason to know that the purchaser may intend to use the non-prescription medicine for an unlawful purpose."
Sticht: "The state cites . . . no authority for their proposition that the sale of an approved over-the-counter drug somehow becomes unlawful merely because the seller may know that the purchaser intends to use it for a purpose unrelated to its approved use."
For legal reasons, the judges couldn't dismiss the Mini Thins cases until after the state presented its evidence at trial. But they were giving Billie Rosen a heads-up that they'd likely toss the cases as soon as they could legally.
Rosen insists that the dismissals weren't a foregone conclusion--"The words in that [exemption] statute says lawfully sold, and it is in question whether those substances could have lawfully been sold under the facts of this case."
But with the handwriting on the wall, Rosen had little choice but to ask for a dismissal and hope for two things:
* That the feds prosecute the cases in District Court.
* That the cases would be dismissed in a way that they might be refiled before different judges in state court--where a new judge might look differently on the exemption law.
Judge Hilliard set a hearing to hear arguments on the second issue.
On May 8, most of the Mini Thins defendants and, in some cases, their families and friends crowded into Judge Hilliard's courtroom.
Dressed in their Sunday best, Amir and Fay Alyas sat nervously in the front row. In front of them milled enough defense attorneys to field two baseball teams, and one prosecutor, assistant attorney general Jeffrey Myer. Billie Rosen--one of the sting's architects--wasn't present.
Hilliard asked Marsha Griffiths to speak first for the defense.
"These people have been humiliated," Griffiths said of her clients, in asking for a permanent dismissal.
One by one, the defense attorneys spoke, most of them saying the same thing in different ways.
Fay Alyas' attorney, Ted Jarvi, asked the couple to stand up. "They are mom and pop," he said, as they faced the judge. "The articulable harm is the destruction of their ideal of the American dream."
Judge Hilliard dismissed the cases shortly after the hearing. But she left the door open for prosecutors to return to Superior Court and hope for friendlier judges if the feds don't prosecute all of the Mini Thins defendants.
Back at Work
It is an early Saturday night in mid-May, and business is hopping at the E-Z Stop market. All four Alyases--Amir, Fay and their two sons--are in the store.
Amir has ordered out for Chinese food. It marks a precious time when the family can eat in the same room at the same time. The parents swallow a bite or two between customers.
The Alyases know many of their customers. There's Marie, the registered nurse who just got off duty and is buying her usual bottle of Guinness. There's a skinny, longhaired kid who's trying again to kick his nicotine habit. There's a fellow who's invited the Alyases to his wedding.
"How long you been know us?" he asks his regular customers one by one, for a visitor's benefit. "How good people are we?"
Marie, the nurse, knows what Amir is getting at.
"These people are the best," she says. "You watch. The [Alyases] treat the guy in the three-piece the same as the bum who hands them a bunch of dirty pennies for a cup of coffee. The government screwed them royally, and for what?"
Last November, the Alyases agreed to pay the state $3,382--$382 was what the couple charged the narcs for the Mini Thins, Sudafed and Actifed, and $3,000 for "the reasonable costs and expenses of the prosecution and investigation of this action." The agreement ended the government's civil forfeiture proceedings against them.
"We can't fight everything or we shut down," Amir explains. "You know. Money." He paid off the State of Arizona in monthly checks, on which he noted cynically, "Re: Selling Cold Medicines."
"You ask my customers how I am," Amir Alyas repeats. "I am a good heart. I smile at people. If police tell me, 'There is new law,' I listen. We not that type of people to know drugs. But we're not white, not Mexican; we have no people in government; we have no one to speak for us. We are very little people here."
Contact Paul Rubin at his online address: firstname.lastname@example.org
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