Iobal Makkar and Gaurav Sehgal operated a small town convenience store in northeastern Oklahoma named “Gitter Done.”


Big Mistake to Ask Law Enforcement for Help


Questions arose about a particular incense the two men carried on the store’s shelves. Makkar and Sehgal contacted state law enforcement. They suggested that the police test the incense to determine if it was legal to sell. They even offered to stop selling the product until the test results came in.


Then federal investigators got involved in the case. The feds have little tolerance for individuals who suggest they only want to do the right thing. Their investigation promptly led to Makkar and Sehgal being indicted for violating the Controlled Substance Analogue Enforcement Act (Analogue Act), conspiracy and money laundering.


Charged With Violating Analogue Act


Makkar and Sehgal elected to stand trial. Under the Analogue Act, the Government bore the burden of proving that the incense had two features: 1) it had to be substantially similar in chemical structure to a Schedule I or II controlled substance; and 2) it had, or it was represented or intended to have, an effect on the central nervous system substantially similar to that of a Schedule I or II controlled substance.


To meet the above burden, and to establish requisite mens rea, the Government had to prove beyond a reasonable doubt that the defendants knew the drug they possessed either (1) had both of the above features, or (2) was controlled by the Controlled Substance Act or the Analogue Act.


The Government in this case, however, did not try to establish that Makkar and Sehgal knew the incense they sold was unlawful under either the Controlled Substance Act or the Analogue Act. Instead, as charged, the Government sought only to establish that the two defendants knew that the incense they sold had 1) a substantially similar chemical structure to JWH-18 (a synthetic cannabinoid with marijuana-like effects which is listed as a controlled substance), and 2) a substantially similar effect to that of marijuana (also a listed controlled substance).


Prosecutors Seek Jury Instruction to Allow Jury to Infer Guilt


And here is where the Government cheated its way to a relatively easy conviction. Prosecutors sought, and secured, an instruction from the court to the jury that jurors could “infer that the defendants knew the incense they sold had a substantially similar chemical structure to JWH-18 from the fact that they knew the incense had a substantially similar effect to marijuana.”


On appeal the defendant’s argued that the Government overreached at trial.


Prosecutors Overreached


In its opinion the Tenth Circuit Court of Appeals explained the case this way:  “In this appeal Mr. Makkar and Mr. Sehgal contend that the government overreached at trial — in the jury instructions it sought and won, and again in its successful efforts to exclude evidence of their cooperation with law enforcement. After our own review of the record, we have to agree.”


Why would these federal prosecutors, who statistically always have the upper hand in federal criminal cases, engaged in underhanded tactics to secure a conviction of the two men?  Because many prosecutors have forgotten that their special duty is to see that justice is done, not merely pull out all the stops for a conviction.


In a November 23, 2015 decision, the Tenth Circuit Court of Appeals synthesized these tactics by pointing out that the “government asked for and won the right to collapse its two separate elemental mens rea burdens into one.”


Shortcut to Conviction


In other words, prosecutors took a shortcut to conviction.  They were then able to obtain a conviction without offering any evidence that the defendants knew anything about the chemical structure of the incense they sold.  This effectively relieved the government of proving each essential element as specified by the Analogue Act.


The appeals court explained:


“Under the inferential instruction [prosecutors] secured, the government was able to argue to the jury that it should find the first mens rea element satisfied beyond a reasonable doubt merely (and without more) because it found the second satisfied beyond a reasonable doubt.”’


The court added: “This surely made the trial easier for the government, but just as surely means we must undo the judgment now.”


Prosecutors Knew Case was Weak


We strongly believe the Government undertook the prosecution of Makkar and Sehgal in bad faith.


Prosecutors were aware, or should have been, that the Drug Enforcement Administration (DEA) has notified federal prosecutors that while JWH-18 and marijuana have similar effects, JWH-18 “is not related in chemical structure to [THC] or other cannabinoids contained in the cannabis plant.”


Even more damning is the fact that the Government’s own “chemistry experts” informed both prosecutors and the trial court that a federal district court in Arizona had ruled that the inferential instruction sought, and issued, in the Makkar/Sehgal case was “not scientifically sound.”


Government Motions Prevented Defendants from Offering Relevant Evidence


But, in our view, the greatest evidence of bad faith was the fact that prosecutors filed a written motion in limine to have evidence showing that the two defendants tried to cooperate with state law enforcement excluded as “irrelevant” under Rule 401 of the Federal Rules of Evidence. The court granted the motion, preventing the jury from ever hearing this highly significant evidence that went directly to mens rea.  This, the appellate court said, deprived the defendants’ of the ability to admit “important evidence relevant to a sharply controverted question going to the heart of [the] defense…”


Fortunately, the Tenth Circuit reversed the Analogue Act convictions of the two defendants. This done, the appeals court said, the convictions for conspiracy and money laundering also had to be reversed because there was no “predicate crime” to support them.


While the prosecutorial tactics employed by Government prosecutors in this case did not violate any rules of ethics, we nonetheless feel the tactics used to convict Makkar and Seghal were cheap, underhanded, and most certainly unprofessional.