Jim Carlson, the in-your-face headshop owner who defied Duluth authorities for four years before he was convicted last month of selling synthetic drugs, is not going quietly into federal prison.

His attorney has asked U.S. District Judge David Doty for a new trial, the precursor for an appeal to the Eighth U.S. Circuit Court to have the conviction overturned, and some legal observers say he has a chance of winning. The attorney, Randall Tigue, has asked that Carlson be released pending his sentencing.

Synthetic drugs may be addictive and debilitating, but trying to outlaw them remains a cat-and-mouse game for law enforcement because every time one drug is prohibited another one pops up. Congress passed a law banning analogues that mimic the effect of traditional illegal drugs, but some consider the law to be flawed.

"I think if Carlson has a chance on appeal, it's on the grounds that the statute is void for vagueness," former U.S. Attorney Tom Heffelfinger says. "Statutes need to be clear so that people who are governing their behavior have a clear guidance of what they can and cannot do and when the statute is vague, or not clear, there is a body of law that says that the statute is unconstitutional."

But Paul Murphy, who was chief of the criminal section under Heffelfinger, says he believes it's not a close call for the Court of Appeals, noting that in May a panel for the Eighth Circuit upheld the conviction of a synthetic drug dealer who challenged the clarity of the synthetic drug law.

"It is clear that the Eighth Circuit has ruled that the analogue statute is not unconstitutionally vague," says Murphy.

Jim Carlson worked with customers at his store before it was shut down. He is in jail awaiting a decision on a request for a new trial.

Until this year Carlson's store, the Last Place on Earth, was a magnet for addicts and others seeking what they thought were legal drug-enduced highs. Lines stretched down the street and curled around the corner.

Store closed for a year

Duluth business owners, police and community leaders steamed over the impact on the neighborhood, until the store was closed down this summer following a federal raid.

Last week State District Judge Shaun Floerke issued a permanent injunction ordering that Last Place on Earth remain closed for at least one year.

Mark Fredrickson, chief financial officer for ShelDon, a printing company next door to Last Place, calls Floerke's decision "fantastic news," no matter what happens with Carlson's appeal.

Carlson, 56, was found guilty Oct. 7 on 51 of 55 felony counts in U.S. District Court in Minneapolis. Lava Marie Haugen, 33, his girlfriend, was convicted on four counts, including conspiracy, while Carlson's son, Joseph James Gellerman, 35, was convicted of two misdemeanors. Both worked for the shop.

Tigue contended in documents filed last week that Judge David Doty issued improper jury instructions.

He said Doty told the jury that it could be presumed that Carlson knew that the synthetics drugs he sold were chemically similar to banned drugs if he knew that their effect on the central nervous system was the same as or greater than any controlled substance, even ones that were obviously different in chemical structure.

An appeals court in the Seventh Circuit used a similar jury instruction, but Tigue wrote that doesn't make it right.

Tigue also argues that it was unfair for Doty to instruct a jury that Carlson need not know how misbranding is defined by federal law in order to have knowledge that a drug was misbranded.

Tigue said Doty should also have allowed the jury to hear statements made by public officials including U.S. Sen. Amy Klobuchar of Minnesota, whom he quotes as saying that new laws were needed because synthetic drugs can be purchased legally. Tigue also quotes a spokeswoman for the Drug Enforcement Administration saying there were 210 synthetic drugs not banned by the DEA.

"Carlson was told by multiple government officials that [what he sold] was not illegal," Tigue said in interview. "It is [a]clear indication of his lack of knowledge."

Some expert opinion

Joseph Daly, emeritus professor of law at Hamline University, says he believes Tigue will not make much headway arguing what government officials said on the matter of law, because it is only their opinion. But he said Carlson still stands a good chance of winning an appeal. He called the law banning analogue drugs, "at minimum, vague and confusing" and may violate the 14th Amendment guarantee of a fair legal process.

But Murphy believes the Eighth Circuit in May already decided the substance of Carlson's argument in USA vs. Sullivan. In that case, a panel upheld the conviction of Steven Miles Sullivan for possession with the intent to distribute a controlled analogue substance. Although the DEA had not yet classified the analogue as illegal, the court said the law "does not, however, require the DEA to classify a substance as controlled substance analogue before the substance falls under its purview."

Tigue disagrees, saying the circumstances were different in Sullivan's case.

No date for sentencing is set.

Randy Furst • 612-673-4224