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The Strange Case of Mark Niemoeller

A court will decide whether mushroom grower Mark Niemoller is a legitimate businessman -- who has successfully carved out a lucrative niche market -- or whether he has broken federal drug laws.
 
 
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Mark Niemoeller, 46, of Columbus, Ind., decided to give up farming in 1987. With money loaned to him by a friend, Niemoeller set up a mail-order business that he ran from his family farm. The business, JLF Poisonous Non-Consumables, began with the sale of one product: amanita muscaria mushrooms. Niemoeller picked the red-capped mushrooms himself, dried them out in an old RV, then placed an ad in High Times magazine. Soon JLF Poisonous Non-Consumables was inundated with orders. By September 2001, JLF had become a multi-million-dollar business -- raking in $50,000 a month and branching out into the sale of hundreds of other plants, mushroom species and pure chemical compounds.

Why would a company that sells purportedly poisonous products advertise in High Times ?

Perhaps because JLF's best-selling product, amanita muscaria, as well as dozens of other products now included in the catalogue, have powerful psychoactive properties -- when ingested.

Ingestion is the key here, since Niemoeller contends that the consumption of JLF's products is not an issue. The legal justification for his argument, he says, is right in the company's name -- JLF Poisonous Non-Consumables.

JLF requires that every customer recite a disclaimer in a recorded telephone conversation. The disclaimer states that the customer is over 18 years old and will not ingest products purchased from JLF.

In addition to the disclaimer, JLF's catalogue displays a lengthy warning, which makes it quite clear to the customer, Niemoeller says, that JLF products are not to be taken internally.

"Do not take orally (into your mouth) as a food, a beverage, a chew, a toothpick, a nutritional supplement, a medicine, a drug or an agent of suicide," reads a portion of the warning. "Do not eat, drink, inject, inhale, insert, absorb, snuff, snort, smoke, slam or ingest in any way. Do not stick, put, or throw into your or another person's mouth, nose, ear, eye, anus, urethra, vagina, or any other orifice or port-of-entry that may exist on your or another person's body."

For nearly 15 years no one called into question JLF and its unusual disclaimers.

In the late 1990s, however, several law enforcement agencies, including the Drug Enforcement Administration, the Food and Drug Administration and the Indiana State Police, began to take a keen interest in JLF.

On Sept. 7, 2001, police served Niemoeller with a search and seizure warrant. They confiscated about $250,000 in merchandise, $1 million in assets, bank books, financial records, business ledgers, lists of addresses and phone numbers, documentation of business expenditures, travel documentation, computers and Niemoeller's 1998 Dodge Ram utility van.

Niemoeller wrote out a check to Indianapolis attorney Andrew Matternowsky, who handles a lot of drug and civil liberties cases. Later that week, police froze about $750,000 in Niemoeller's bank accounts, and the check to Matternowsky bounced. (Matternowsky remains unpaid.)

For nearly five months nothing happened. Then on Jan. 28, police arrested Niemoeller and served him with a 13-count federal grand jury indictment. Niemoeller spent the night in the Marion County jail. On March 18, he will stand trial in a federal district court in Indianapolis.

JLF's Non-Consumables

Niemoeller, the grandson of hard-working German immigrants, built up his business atop a pile of red amanitas mushrooms.

While the ritual use of these mushrooms as hallucinogens dates back 8,000 years, back when Siberian shamans ate the mushrooms to induce visionary trances, the use of these mushrooms for such a purpose is not recognized by federal drug laws.

According to Erowid.org, an extensive on-line library of drug information, amanita muscaria is perfectly legal in every country in the world -- with the sole exception of Israel.

In the United States, possession or distribution of amanitas mushrooms cannot be prosecuted under federal drug analogue statutes. The psychoactive compounds contained in the mushroom, ibotenic acid and muscimol, bear no chemical relation to any other known drug.

As sale of these mushrooms brought in large profits, Niemoeller slowly began to add other products to JLF's catalogue.

Prior to the September raid, JLF Poisonous Non-Consumables offered dozens of products that had one thing in common with the amanitas mushrooms -- they were all psychoactive when consumed and not specifically covered by federal drug laws.

It is true, however, that a number of JLF's products are truly poisonous, such as the "destroying angel" mushroom, the leaves of the "deadly poison hemlock," and curare, the infamous dart-poison from the Amazon.

But many of JLF's products have psychoactive, and not poisonous, properties, and these are some of the very products that police have called into question.

Take, for example, 5-MeO-DMT. The chemical shares a certain similarity to dimethyltryptamine, or DMT, a powerful, short-acting hallucinogen, sometimes called "the businessman's trip," since its effects wear off entirely in an hour. According to federal law, DMT is a Schedule I substance.

5-MeO-DMT is another story. When LSD, DMT, PCP, psilocybin and mescaline became federally scheduled substances, 5-MeO-DMT did not.

But when even a few milligrams of the chemical are loaded into a pipe and smoked, the user is instantaneously overcome by psychoactive effects described as far more intense than those of any illegal drug.

Amanita muscaria mushrooms and pure powdered 5-MeO-DMT are not the only potentially psychoactive substances sold by JLF.

There's salvia divinorum, a plant from Oaxaca, Mexico, used by Mazatec Indian shamans to induce powerful visions. Or khat, an African plant, chewed for its amphetamine-like effects. Or yage, a vine used by South American sorcerers to contact the spirit world.

JLF also offers a smorgasbord of exotic chemicals that are unknown, and unpronounceable, to the average American.

JLF also sells products which the indictment claims are "misbranded" prescription drugs, like clenbuterol, L-Dopa, and Dopamine. (Clenbuterol is a sort of pseudo-steroid, which promotes muscle growth in both animals and humans; its only approved use is as a syrup given to horses. L-Dopa can be used, as prescription drug, to combat the symptoms of Parkinson's disease. Dopamine is injected by doctors into patients with dangerously low blood pressure.)

Jennifer Bragg, an FDA attorney, says these charges basically mean that Niemoeller was "dispensing prescription drugs without a prescription."

The indictment also alleges that JLF sells a products that can be used to manufacture illegal drugs. JLF sells sassafras oil, which contains a high concentration of safrole. Safrole can be used to make MDMA, or Ecstasy, and it is considered a Schedule I listed chemical, meaning that the DEA tracks and regulates its sale. JLF also sells 1,4 butanediol, another listed chemical, which can be used to manufacture GHB, a federal Schedule I drug (1,4 butanediol can also be ingested to produce effects similar to GHB).

The indictment also charges that JLF sells 2C-T-7, allegedly an analogue of 2C-B, the club drug known as Nexus.

The DEA and FDA have spent years going after Niemoeller, presumably on the assumption that Niemoeller is, in reality, operating a quasi-legal drug-dealing operation.

Whether the police are right, or whether Niemoeller is a legitimate businessman -- who has successfully carved out a lucrative niche market, carefully operating on the outskirts of federal drug laws -- has yet to be determined.

The FDA Investigation, Summer Rose Pray and Senator Daschle

According to discovery documents in the Niemoeller case, police were aware of JLF as early as 1990. A DEA report shows that agents came across packages of dried mushrooms (presumably amanita muscaria) in New York in 1990, as well as morning glory seeds, a San Pedro cactus and jimson weed in Detroit in 1994, all of which allegedly came from JLF.

There were reports from U.S. Customs, the U.S. Border Patrol and various informants about suspicious activity connected with JLF.

But police did not become especially interested in JLF until a series of overdose cases in the late 1990s that were allegedly caused by the consumption of JLF products.

Reports filed by Special Agent Vincent Perino of the FDA's Chicago Field Office show that the FDA first began investigating JLF in December 1998.

Perino writes that Detective Eric Hall of the Cincinnati Police Department informed him of the near-fatal overdose case of Michael Sims, who nearly died after ingesting 1,4 butanediol. Sims allegedly obtained the chemical from JLF.

Hall did some checking on JLF: he discovered that Jeff L. Frownfelter, 42, of Ellettsville, opened a P.O. Box for JLF in 1987. Mark N. Niemoeller added his name to the P.O. Box in 1991. Police guessed that the initials "JLF" most likely stood for Jeff L. Frownfelter.

Police also began to purchase JLF products for laboratory testing. Hall purchased a quantity of 5-MeO-DMT. Other agents were to follow, buying clenbuterol, sassafras oil, cohoba seeds, 2C-T-7 and several other products.

On March 3, 1999, Hall told Perino about the overdose death of a 20-year-old University of Minnesota sophomore named Summer Rose Pray. Pray committed suicide on Sept. 18, 1998, by taking a massive overdose of dextromethorphan hydrobromide, or DXM, which Pray allegedly obtained from JLF. Police have several receipts of the purchases Pray allegedly made from JLF.

DXM is the active ingredient in most over-the-counter cough syrups. In recommended doses, it acts as an expectorant; in large doses, it can cause hallucinations and out-of-body experiences -- "robotripping," as DXM enthusiasts call the unique state of consciousness produced by the drug.

Summer Pray's father, Ron Pray, was outraged by his daughter's death, and contacted Senator Tom Daschle's office.

Ron Pray sent a letter to Ace Gallagher, a Daschle staffer, on April 2, 2000, in which Pray chronicles his daughter's drug abuse (beginning with marijuana), her purported addiction to DXM, and her participation in various drug treatment programs. (A fax cover sheet, included in discovery documents, shows that Senator Edward M. Kennedy's Labor Police Office was also aware of Pray's letter.)

After Summer Pray finished an out-patient drug-treatment program and began "seeing a psychologist for depression," Ron Pray sent a letter to JLF in August, 2000, "asking that they not provide this substance [DXM] to her again."

According to a receipt obtained by police, however, Summer Pray did make another purchase of DXM from JLF shortly before she committed suicide.

"I investigated JLF and found that they readily sell dangerous drugs and mushrooms but have a disclaimer that it is not for consumption," Ron Pray wrote to Daschle's office. "They make the ridiculous claim that the materials they sell are for religious worship, research or for decorations. Reading between the lines it is obvious to me that they sell an assortment of drugs to individuals for the purpose of intoxication ...

"Summer's death was a result of the combination of depression and drug abuse ... I feel that we could have dealt with her depression successfully, had it not been for the strong addiction she developed to dextromethorphan ... Had this drug not been so readily available maybe Summer would be alive today.

"It does not seem reasonable that a company like JLF should be allowed to sell these dangerous and addictive substances. Basically, they are an internet drug dealer and apparently can operate within the laws. I would hope that somehow their activity could be stopped ... "

Ron Pray's letter, and the attention of Daschle's office, may have provided more momentum to the investigation of JLF. But distribution of DXM is not one of the charges that Niemoeller faces. In fact, DXM, while mentioned in the search warrant of Niemoeller's farm, is not listed in the federal grand jury indictment. That may be because DXM is perfectly legal and is specifically exempted from federal drug laws. And while Summer Pray may have overdosed on DXM purchased from Niemoeller, she could have accomplished the same outcome by drinking a few bottles of Robotussin.

But the case of Summer Pray may bolster the prosecution's argument that Niemoeller knows his customers are using his products for consumption.

Summer Pray isn't the only person to overdose on products that allegedly came from JLF.

At least one other death has been traced to a JLF product. Free-lance writer Mark Boal reports in the Jan. 31 issue of Rolling Stone that 17-year-old Joshua Robbins died on April 2, 2000, after snorting 35 mg of 2C-T-7 ("A Journey Into the Designer-Drug Underground"). Robbins obtained the drug from a friend, who allegedly purchased it from JLF.

(Boal also writes, more than half-way through the article, that Robbins also consumed a minithin -- 25 mg of ephedrine and 5 mg of guaifenisen -- immediately prior to snorting the whopping dose of 2C-T-7, and several hours after huffing nitrous oxide and swallowing a hit of Ecstasy, which typically can contain all sorts of adulterants.)

Boal's article also recounts the overdose death of 20-year-old Jacob Duroy, who died after snorting 35 mg of 2C-T-7, which again allegedly originated at JLF.

Discovery documents in the Niemoeller case also relate the nearly-fatal 2C-T-7 overdose of Christopher Little of Overland Park, Kan., on April 5, 2001.

Various reports from the DEA, FDA and ISP, included in discovery documents, mention at least a dozen other cases involving JLF products -- including poppy seeds intercepted in Buenes Aires, Argentina, 2C-T-7, DXM and DPT being sold at raves in Wisconsin, a bottle of sassafras oil with a JLF label found at a clandestine MDMA lab, and soldiers at Fort Campbell using 5-MeO-DIPT (or "Foxy Methoxy").

The Consumption of Non-Consumables

The big burden of proof for prosecutors will be to demonstrate that Niemoeller intentionally sold his products for consumption.

Niemoeller contends that JLF's exhaustive disclaimer is sufficient refutation of this argument.

However, Niemoeller will have to defend himself against recorded conversations he had with undercover agents regarding the consumption and illegal use of JLF products.

One of these conversations is likely to be a center piece of the case. On April 18, 2000, FDA Special Agent Vincent Perino went undercover, met with Niemoeller, bought several items, including clenbuterol, and had an extensive recorded conversation with Niemoeller.

Perino repeatedly attempts to draw Niemoeller into discussion about the illegal use of JLF's products by introducing the following topics: the pressing of Clenbuterol powder into pills, the use of Clenbuterol as a muscle-builder, the manufacture of MDMA from sassafras oil and the use of L-Tryptophan as a sleep aid.

But Perino is doing most of the talking on the tape, and much of Niemoeller's statements are somewhat ambiguous.

For example, after Perino and Niemoeller discuss the pressing of clenbuterol into pills, Niemoeller says, "Ah, I just heard this through the grapevine ... I haven't talked to any of them myself, this guy had the idea, I said, well yeah, it sounds like a pretty good idea ... "

In other portion of the conversation, Niemoeller makes these comments about "how to do business":

Niemoeller: On the other hand, you might have somebody look at my web site thinking, well that's not really the kind of web site I'm looking for, I'm looking for bodybuilding materials ...

Perino: Exactly, that's what I --

Niemoeller: There's no bodybuilding anywhere --

Perino: See that's what I'm thinking.

Niemoeller: On this site, they're thinking it's not gonna be there but it's really, it's all based on a lack of understanding of how --

Perino: Right.

Niemoeller: How to do business.

Perino: Right, right, of course. I mean yeah that fucking disclaimer is the biggest -- that's hilarious.

Niemoeller: Nobody does business like us and nobody really knows how to go about thinking what we're doing.

'Nobody Really Knows'

Police and prosecutors obviously had a difficult time focusing the investigation -- particularly in figuring out how various substances were classified under federal laws and regulations.

Discovery documents, which include reports from the FDA, DEA, ISP and drug lab reports, show that police went through a whole gamut of JLF's products before deciding on the products mentioned in the indictment.

While many of these items are listed neither in the indictment nor in the search warrant, prosecutors did succeed in preventing Niemoeller from selling them, if only for a limited time.

In order to get out of the Marion County jail, Niemoeller says he made a deal with prosecutors, in which he agreed not to sell the items mentioned in the indictment, as well as those in the search warrant, as well as the following products: 2C-T-2, Brazilian sassafras oil, 5-MeO-DMT, 5-MeO-DIPT, the skins of bufo marinus toads, tramadol, benzylpiperazine, L-tryptophan and betel nuts.

Whether or not JLF can continue to sell these products will be determined in court.

Niemoeller has no idea why prosecutors chose the particular items they did, or why they did not chose other products in the JLF catalogue.

He suspects that prosecutors are "trying to throw their weight around" by undermining his business.

And his business certainly has been undermined: profits have dropped off 90 percent since Sept. 7, he says, and are likely to worsen now that he has signed an agreement to stop selling the abovementioned items.

But Niemoeller is particularly annoyed at how FDA officials have handled his case. First, Niemoeller questions why his business is being targeted for the sale of L-Dopa, dopamine and clenbuterol, when there are plenty of other companies that sell the same products -- for example, the chemical supply houses where he purchased these very items.

Second, Niemoeller wonders why the FDA did not send him a warning, as it habitually does to businesses found in violation of FDA regulations.

"They could have put those items in a warning letter, and we could have avoided all this," he says.

Instead Niemoeller says police chose to act in a manner that he describes as "domestic terrorism."

"Although on a much smaller and less violent scale, JLF suffered a similar attack at the hands of domestic terrorists whose activities, if unchallenged, will just as assuredly diminish and erode our freedoms as the any attack by religious zealots," reads an essay posted on www.jlfcatalog.com.

The Legal Quagmire

The looming legal battle is likely to be long and strange, says Andrew Matternowsky, Niemoeller's attorney.

"There's virtuallly no precedent in this area," he says. "We're in an area where there's virtually no case law. If [the police] had gone in and found a pound of cocaine it would be different."

Some of the products they have in their possession are apt to cause all sorts of confusion.

Take, for example, cohoba seeds, a product offered by JLF, but one that was not mentioned either in the search warrant or in the indictment.

These South American seeds contain concentrations of 5-MeO-DMT, DMT and bufotenin. DMT and bufotenin are Schedule I chemicals. Because, however, the cohoba seeds contain DMT and bufotenin, Matternowsky argues, does not automatically imply that the seeds themselves are illegal to possess.

"Clearly those things [DMT and bufotenin] are illegal," he says, "but it's not so clear that the seeds -- a natural object containing them -- are illegal."

This confusion over the legal status of cohoba seeds may be the reason why prosecutors decided to leave them out of the indictment.

Another problem for prosecutors, Matternowsky says, is the legal status of sassafras oil.

While safrole may be on the DEA list of suspicious chemicals, there is no public information that specifically mentions sassafras oil.

Discovery documents, however, include a DEA teletype marked "sensitive" which dictates that the rule that applies to safrole also applies to sassafras oil. "This cable clarifies existing DEA policy," reads the October 1999 teletype.

But there is no way that Niemoeller could have had access to that document, or even had knowledge of the "clarification," which was apparently not made public.

Matternowsky also argues that the outcome of the case could be potentially "disastrous" for the civil liberties of all Americans.

"There are so many natural sources for controlled substances and chemicals that can be used to manufacture controlled substances ... that anybody could be at risk at any time," he says. He picks out the example of phalaris arundinacea, a common lawn grass that contains high concentrations of bufotenin and DMT.

"How do you know that the ornamental border grass around your flower garden doesn't contain DMT?" he says.

"It's very interesting. I'm really at a point where we don't know completely what to do because the whole thing is so obscure and vague," Matternowsky says. "I think, in a true-believer sense, these agents are convinced that what [Niemoeller] is doing is illegal. The problem is, there's not really a factual basis for them to say that."

Travis Dunn, a former police-beat reporter for The Star Democrat in Easton, Md., now works as a free-lance writer in Fort Myers, Fla. You can reach him at pressbuzzard@yahoo.com.

 
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