Suspects of Convenience

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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.

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Paul Rubin
Contact: Paul Rubin