Appendix — Janus Industries v. United States

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UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JANUS INDUSTRIES,

doing business as

Acapulco Smoke Shop,

Defendant - Appellant.

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

V.

JAMES B. JANUS,

Defendant - Appellant.

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

V.

JANUS INDUSTRIES,

—_—

)

)

)

)

) No. 94-1074

) (D.C. No. 93-CR-233)

)

)

)

)

)

No. 94-1075

(D.C. No. 93-CR-233)

Nee Ne Nee ee ee ee ees ee

No. 94-1113

(D.C. No. 93-CR-233)

ee Nee ee ee Ne” ee

2a

doing business as

Acapulco Smoke Shop,

Defendant - Appellant.

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

No. 94-1114

(D.C. No. 93-CR-233)

V.

JAMES B. JANUS,

i i a a a a a

Defendant - Appellant.

ORDER

Entered February 27, 1995

Before ANDERSON and RELLY, Circuit Judges, and COOK*,

Distrnica Judge.

*Honorable H. Dale Cook, Senior District Judge, United States

| District Court for the Northern District of Oklahoma, sitting by

designation.

This matter comes on for consideration of appellants’

petition for rehearing and suggestion for rehearing in banc.

Upon consideration whereof, the petition for rehearing is

denied by the panel that rendered the decision.

OO

3a

In accordance with Rule 35(b), Federal Rules of

Appellate Procedure, the suggestion for rehearing in banc was

transmitted to all of the judges of the court who are in regular

active service. No member of the panel and no judge in regular

active service on the court having requested that the court be

polled on rehearing in banc, Rule 35, Federal Rules of Appellate

Procedure, the suggestion for rehearing in banc is denied.

Entered for the Court

PATRICK FISHER, Clerk

By

Deputy Clerk

4a

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, _)

)

Plaintiff-Appellee, ) Case Nos. 94-1074

) 94-1075

V. ) 94-1113

) 94-1114

JANUS INDUSTRIES, ) (DC. No. 93-CR-233)

doing business as ) (D. Colorado)

Acapulco Smoke Shop, )

and JAMES B. JANUS, )

)

Defendants-Appellants. )

ORDER AND JUDGMENT*

Before ANDERSON and KELLY, Circuit Judges, and

COOK,** District Judge. _

Defendant James B. Janus and his company Janus

Industries, were charged in a 165-count indictment with sales of

drug paraphernalia, 21 U.S.C. §§ 857 and 863, cultivation of

marijuana, 21 U.S.C. § 841(a)(1), and money laundering, 21

U.S.C. § 1956(a)(1)(A)i). The jury returned guilty verdicts as

to both Janus and Janus Industries on two of the drug

paraphernalia counts, and a guilty verdict as to Mr. Janus on the

marijuana count. The parties resolved the money laundering

counts by stipulation. Mr. Janus was sentenced to twenty-four

months incarceration and required to pay a $50,000 fine. . Janus

Industries was fined $14,000. The defendants appeal,

contending that (1) the district court erred in refusing to grant

Sa

defendants’ motion to Suppress evidence gathered pursuant to

the search warrant on the grounds that the underlying affidavit

was insufficient to establish probable cause, and the warrant

obtained by the officers was unconstitutionally overbroad: (2) the

the search was in plain view: (3) the Drug Paraphernalia Act, 21

U.S.C. § 863, is unconstitutional because it lacks an interstate

to any person legally authorized to distribute such items; (6) the

defendants were denied a fair trial because of the prosecutor's

statement in closing argument that the defendants’ items were

“evil”; and (7) the district court erred at sentencing by granting a

two-level increase for obstruction of justice and by failing to

grant a two-level reduction for acceptance of responsibility. We

affirm.

BACKGROUND

This action arose from a nationwide United States

Customs operation ("Operation Pipe ") investigating suspected

drug paraphernalia dealerships or "head shops." Special Agent

Tracy Lembke led the Customs investigation in both Colorado

and Wyoming, during the course of which Customs obtained

search warrants for seven different shops in the Denver-metro

area that were suspected of selling drug paraphernalia. Under

Lembke's direction, search teams were divided up and the

several warrants were executed simultaneously on January 21,

199].

While executing one of these warrants at a shop called

Rolling Stone Enterprises ("Rolling Stone") customs agents

discovered information Suggesting that the Acapulco Smoke

Shop located at 3520 Brighton Boulevard, although not

originally one of the targeted locations, was also engaged in the

drug paraphernalia business. Customs then sent Agent Santelli

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to the Acapulco Smoke Shop as a "potential customer" to verify

whether they were selling drug paraphernalia on the premises.

Agent Santelli reported that he did see drug paraphernalia for

sale and that an employee of the Acapulco Smoke Shop, later

identified as Janus, told Santelli that he better get what he

wanted tonight because the "narcos were out" and he had

"trimmed his shelves." R. Vol. 4 at 114.

Based on the information provided by Agent Santelli and

the information recovered in investigating Rolling Stone, Agent

Lembke then drafted an affidavit for a warrant to search the

premises at 3520 Brighton Boulevard. The subsequently issued

warrant authorized the agents to search Janus's premises for

"[aJny and all drug paraphernalia" as defined in the drug

paraphernalia statute as well as various documents and business

records related tp the sale of drug paraphernalia or the proceeds

from such sales. R. Vol. 1, Doc. 18, Ex. A.

Prior to the issuance and arrival of the search warrant,

however, Agent Lembke ordered the two-story building at 3520

Brighton Boulevard secured because she had reason to suspect

that evidence may be removed. R. Vol. 3 at 4. Three agents

arrived at 6:00 p.m. to "sweep" the premises. The agents found

three individuals on the premises, one of whom was Janus. The

agents informed the individuals that they were free to leave, and

ultimately only Janus remained. At some point after securing the

premises but prior to the arrival of the warrant, the agents heard

a commotion upstairs in the bedroom area; Janus was apparently

moving things around. An agent asked Janus what was going

on, and Janus reportedly said either "nothing" or "lied." R. Vol.

7 at 810.

By the time agent Lembke arrived with the warrant later

that evening, approximately twenty-five federal agents were on

the premises to help conduct the search. Agent Lembke went

directly to Janus and presented him with a copy of the warrant,

reviewed what the agents were there for, and advised him of his

rights. Following a video taping of the premises, the agents

began searching.

Ta

Among other things, the search uncovered a hydroponic

garden or grow area in a partly hidden closet upstairs. The

closet contained a grow light, watering system, and was panelled

with styrofoam. There were no plants, but the lights were on

and the soil was moist. Meanwhile, Agent Burke, an IRS agent

who had been assigned to look for documents and financial

records in the bedroom area, noticed a dresser that had what

appeared to be a concealed bottom drawer Upon opening the

drawer he found seven marijuana plants with moist dirt still

clinging to the roots.

DISCUSSION

I, Motion to Suppress: Validity of Search Warrant

Before trial Janus moved to Suppress all evidence

derived from the search on January 21, 1991, on the grounds

that (1) Agent Lembke's underlying affidavit was insufficient to

establish probable cause to search Janus's premises and (2) the

warrant was overbroad because it failed to state with

particularity the things to be seized. The district court denied

that motion following a hearing.

In reviewing the denial of a motion to suppress, we must

“accept the trial court's findings of fact unless Clearly erroneous."

United States v. Dahiman, 13 F.3d 1391, 1394 (10th Cir. 1993),

cert. denied, 114 S. Ct. 1575 (1994); United States v. Wicks,

995 F.2d 964, 968 (10th Cir.), cert. denied, 114 S. Ct. 482

(1993); United States v. Carr, 939 F.2d 1442, 1443 (10th Cir.

1991). However, "[w]e review de novo the ‘ultimate

determination of Fourth Amendment reasonableness." United

States v. Little, 18 F.3d 1499, 1503 (10th Cir. 1994) (quoting

United States v. Allen, 986 F.2d 1354, 1356 (10th Cir. 1993)).

We must view the evidence in the light most favorable to the

government. Wicks, 995 F.2d at 969: Carr, 939 F.2d at 1443.

The Fourth Amendment provides that "no Warrants shall

issue, but upon probable Cause, supported by Oath or

affirmation, and particularly describing the place to be searched,

and the persons or things to be seized." US. Const. amend. IV;

8a

United States v. Mesa-Rincon, 911 F.2d 1433, 1436 (10th Cir.

1990).

A. Probable Cause

The existence of probable cause is a common sense

standard. Wicks, 995 F.2d at 972. The Supreme Court has

stated that "probable cause is a fluid concept--turning on the

assessment of probabilities in particular factual contexts--not

readily, or even usefully, reduced to a neat set of legal rules."

Illinois v. Gates, 462 U.S. 213, 232 (1983). “The task of the

issuing magistrate is simply to make a practical, common-sense

decision whether, given all the circumstances set forth in the

affidavit before him... there is a fair probability that contraband

or evidence of a crime will be found in a particular place." Id. at

238.

A reviewing court must give great deference to the

magistrate's determination of probable cause, United States v

$149,442.43 in United States Currency, 965 F.2d 868, 872 (10th

Cir. 1992), and we should uphold that conclusion if the "totality

of the information contained in the affidavit provided a

substantial basis for finding there was a fair probability that

evidence of criminal activity would be found” at the Acapulco

Smoke Shop. United States v. Hager, 969 F.2d 883, 887 (10th

Cir.), cert. denied, 113 S. Ct. 437 (1992).

Janus argues that the only information the magistrate had

suggesting that wrongdoing would be found in the Acapulco

Smoke Shop was Agent Santelli's "bald assertion" that he saw

"drug paraphernalia." Janus claims that this mere conclusion,

without specific examples of precisely what Santelli saw, is

insufficient to justify the issuance of a search warrant.

The affidavit in support of the January 21, 1991 search

warrant indicates that Agent Santelli reported seeing "a variety

of items defined as drug paraphernalia under [the Drug

Paraphernalia Statute] " for sale at 3520 Brighton Boulevard.

Although Agent Santelli's description was cast in statutory terms,

attachment two of the application for the warrant recites

subsection (d) of the statute which describes "drug

paraphernalia" in great detail and provides several examples

9a

Moreover, the affidavit contained additional information

providing further indicia supporting the conclusion that drug

paraphernalia would be found on the premises. For example, the

affidavit provided extensive background information related to

the investigation of Rolling Stone Enterprises. It stated that the

agents had lawfully searched Rolling Stone Enterprises, had

seized drug paraphernalia, and had recovered information

suggesting that Acapulco Smoke was a supplier for Rolling

Stone and one of the largest distributors in Colorado. The

affidavit provided specific examples of the paraphernalia found

during the Rolling Stone investigation—-indicating that the agents

were in fact aware of what constitutes "drug paraphernalia"--and

Agent Santelli stated that the drug paraphernalia he saw at

Acapulco Smoke was substantially the same as that identified at

Rolling Stone. R. Vol. 4 at 112. Furthermore, Agent Santelli's

conclusion that there was "drug paraphernalia" on the premises

was additionally buttressed by Janus's incriminating statement

that he was “trimming his shelves" because the "narcos are out."

Id. at 114. Finally, the affiant's experience and expertise may

also be considered in the magistrate judge's calculus, see Wicks,

995 F.2d at 972, which, in Agent Lembke's case, consisted of

four years as a special agent for U.S. Customs, and assignment

to lead Operation Pipe in Wyoming and Colorado--a program

directed specifically toward the investigation of drug

paraphernalia

These facts provide sufficient probable cause to support

the magistrates determination that a fair probability existed that

drug paraphernalia was for sale at the Acapulco Smoke Shop.

Thus, we affirm the district court's conclusion that probable

Cause supported the issuance of the search warrant.

B. Particularity

Janus next asserts that the warrant fails to meet the

second part of the Fourth Amendment's requirement. He

contends that the language regarding "drug paraphernalia" was

mere “boilerplate” statutory language, and that the statute's

catchall provision is so overbroad as to allow general rummaging

through his property. He argues that the agents had "no

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direction on how to tell what items were drug paraphernalia and

which were not." Appellants’ Br. at 18.

The Fourth Amendment's requirement that a warrant

particularly describe the things to be seized prevents a "general,

exploratory rummaging in a person's belongings," Coolidge v.

New Hampshire, 403 U.S. 443, 467 (1971), and "makes general

searches . . . impossible and prevents the seizure of one thing

under a warrant describing another. As to what is to be taken,

nothing is left to the discretion of the officer executing the

warrant." Stanford v. Texas, 379 US. 476, 485 (1965)

(quoting Marron v. United States, 275 U.S. 192, 196 (1927));

see also United States v. Medlin, 842 F.2d 1194, 1199 10th Cir.

1988); Voss v. Bergsgaard, 774 F.2d 402, 404 (10th Cir. 1985).

"The particularity requirement [also] ensures that a search is

confined in scope to particularly described evidence relating to a

specific crime for which there is demonstrated probable cause."

Id. at 404. We review de novo the legal question of whether a

warrant is overbroad. Wicks, 995 F.2d at 973; United States v.

Harris, 903 F.2d 770, 774 (10th Cir. 1990); United States v.

Leary, 846 F.2d 592, 600 (10th Cir. 1988). The test applied to

the description of the items to be seized is a practical one. Id.

"A description is sufficiently particular when it enables the

searcher to reasonably ascertain and identify the things

authorized to be seized." “United States v. Wolfenbarger, 696

F.2d 750, 752 (10th Cir. 1982).

The warrant in this case described drug paraphernalia in

terms of subsection (d) of the Drug Paraphernalia Act.

Subsection (d), which was reproduced as attachment number

two to the warrant, defines drug paraphernalia extensively and

includes a thorough list of various types of drug paraphernalia.

See 21 U.S.C. § 863(d). Moreover, although subsection (d)

does contain a catchall provision which includes among drug

paraphernalia "any and all other equipment .. . primarily

intended for or designed for use in . . . producing . . . ingesting .

. or otherwise introducing a controlled substance into the human

body," the provision is sufficiently limited by the language

"primarily intended for" and "designed for use." Id.

lla

We have previously stated that "[a] warrant describing

‘items to be seized in broad and generic terms may be valid if the

description is as specific as circumstances and nature of the

activity under investigation permit." Wicks, 995 F.2d at 973

(quoting Harris, 903 F.2d at 775). Moreover, where the subject

of the search is related to the illegal drug business, we have

repeatedly upheld search warrants cast in comparably broad

terms. See id. (listing cases) “When the circumstances of the

crime make an exact description of the fruits and

instrumentalities a virtual impossibility, the searching officer can

only be expected to describe the generic class of items he is

seeking.” United States v. Emmons, 24 F.3d 1210, 1216 (10th

Cir. 1994) (quoting Harris, 903 F.2d at 775). The type of

criminal activity under investigation in the present case--a drug

paraphernalia business-makes it difficult to list with great

particularity the precise items desired to be seized which

evidence such activity. Consequently, we conclude that the

warrant in question, although describing the paraphernalia in

Statutory terms, was sufficiently particular under these

circumstances. It was limited to materials related to the use of

illegal drugs, and to documents and other items that went to that

intended use. The district court therefore correctly denied

Janus's motion to suppress evidence seized pursuant to the

warrant.

II. Motion to Suppress: Marijuana

Janus contends that the district court erred in refusing to

grant his motion to suppress the marijuana found during the

search. Janus argues that the marijuana was outside the scope of

the warrant and that the district court erroneously concluded that

it was in “plain view."

The warrant did not authorize the agents to search for

marijuana. However, where the government has a warrant to

search a given area for specific objects, and in the course of the

search come across some other article of incriminating character,

the plain view doctrine may permit the government to seize the

evidence without a warrant. See Coolidge v. New Hampshire,

403 U.S. 443, 465 (1971) (plurality opinion). We note the

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caution, however, with which we must apply the plain view

doctrine: "[I]}t is important to keep in mind that, in the vast

majority of cases, any evidence seized by the police will be in

plain view, at least at the moment of seizure.” Id.

To justify a warrantless seizure based on plain view,

therefore, we have held that three conditions must be satisfied.

United States v. Naugle, 997 F.2d 819, 822 (10th Cir.), cert.

denied, 114 S. Ct. 562 (1993). First, the seizing agent must not

have violated the Fourth Amendment "in arriving at the place

from which the evidence could be plainly viewed." Id. (quoting

Horton v, California, 496 U.S. 128, 136 (1990). Second, "the

item must not only be in plain sight, but its incriminating

character must also be immediately apparent." Id. (quoting

Horton, 496 U.S. at 136). Third, "not only must the officer be

lawfully located in a place from which the object can be plainly

seen, but he or she must also have a lawful right of access to the

object itself" Id. (quoting Horton, 496 U.S. at 137).

We are satisfied that these elements have been met under

the present circumstances, and thus the district court properly

denied the motion to suppress. First, the district court found that

the warrant permitted the agents to search the second floor and

the bedroom area for drug paraphernalia and documents. R.

Vol. 3 at 138-39. Additionally, the court found that the drawer

containing the marijuana ‘was a drawer where documents could

have been located, and in fact, documents had been found in the

bedroom. Id. at 139. These findings can hardly be considered

clearly erroneous. Naugle, 997 F.2d at 822 ("A lawful search of

fixed premises generally extends to the entire area in which the

object of the search may be found and is not limited by the

possibility that separate acts of entry or opening may be required

to complete the search." (quoting United States v. Ross, 456

U.S. 798, 820-21 (1982))). Second, the incriminating nature of

the evidence was immediately apparent to Agent Burke who

testified that he recognized the plants to be marijuana as soon as

he opened the drawer. R. Vol. 5 at 204. Third, Agent Burke

had a lawful right of access to the marijuana. The marijuana was

l3a

in a drawer where Agent Burke was permitted to look, and he

did nothing more than open the drawer

Til. Drug Paraphernalia Act

Janus next asserts that the current drug paraphernalia

Statute violates the Tenth Amendment because it does not

contain an interstate commerce element and lacks specific

congressional findings "that the sales of drug paraphernalia affect

interstate commerce." R. Supp. Vol. 1, Doc. 2. We review de

novo the issue of whether § 863 represents a legitimate exercise

of congressional authority. Johnston v. Cigna Corp., 14 F.3d

486, 489 (10th Cir. 1993): United States v. Murphy, 977 F.2d

503, 504 (10th Cir, 1993),

Article I, section 8, clause 3 of the Constitution confers

upon Congress the power "[t]o regulate Commerce... among the

several states" and clause 18 of the same article grants Congress

the power "[t]o make all laws which shall be necessary and

proper for the carrying into execution the foregoing powers."

Under its extensive commerce power, Congress may regulate

purely intrastate activities that affect interstate commerce, Fry v.

United States, 421 U.S. 542, 547 (1975) ("Even activity that is

purely intrastate in character may be regulated by Congress,

where the activity affects commerce among the States or with

foreign nations."), and need not require proof of a nexus

between the activity and interstate commerce. See, e.g., Perez v.

United States, 402 U.S. 146, 153 (1971) (upholding 18 U.S.C.

§§ 891-894, which prohibit extortionate credit transactions but

do not expressly require proof of an interstate commerce nexus);

see also United States v. Lane, 883 F.2d 1484, 1492 (10th Cir.

1989) (upholding 18 U.S.C. § 245(b)(2)(C), which prohibits

interference with applications for or enjoyment of private

employment because of race, color, religion, or national origin

but does not expressly require proof of an interstate commerce

requirement), cert. denied, 110 S. Ct. 872 (1990). Janus

apparently concedes this, but argues that § 863 is

unconstitutional because the legislative history for the specific

Statute does not contain any explicit or implicit congressional

hear

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findings that sales of drug paraphernalia affect interstate

commerce. R. Supp. Vol. 1, Doc. 2.

Janus's argument is foreclosed by prior case law in which

we have repeatedly concluded that "the absence of formal

findings concerning the effect on interstate commerce . . . does

not prevent Congress from regulating under the Commerce

Clause." Morgan v. Secretary of Housing & Urban Dev., 985

F.2d 1451, 1455 (10th Cir. 1993); Lane, 883 F.2d at 1492

("Congress is not required to make 'particularized findings in

order to legislate." (quoting Perez, 402 U.S. at 156). And our

holdings in Morgan, Lane, and the case at bar are entirely

consistent with the Supreme Court's Commerce Clause

jurisprudence. See, e.g., Perez, 402 U.S. at 156 (providing

Congress need not make particularized findings in order to

legislate); Katzenbach v. McClung, 379 U.S. 294, 299 (1964)

(same); see also Fullilove v. Klutznick, 448 U.S. 448, 503 (1980)

(Powell, J., concurring) ("After Congress has legislated

repeatedly in an area of- national concern, its Members gain

experience that may reduce the need for fresh hearings or

prolonged debate when Congress again considers action in that

area.").

Additionally, the Supreme Court has emphasized that

"[w]here the class of activities is regulated and that class is within

the reach of federal power, the courts have no power ‘to excise,

as trivial, individual instances’ of the class." Perez, 402 U.S. at

154 (quoting Maryland v. Wirtz, 392 U.S. 183, 193 (1968)); see

also United States v. Smaldone, 485 F.2d 1333, 1342 (10th Cir.

1973) ("[A]ctivities within a regulated class of activities which

do not exceed the reach of federal power under the Commerce

Clause need not be shown, in each individual case, to affect

interstate commerce."), cert. denied, 416 U.S. 936 (1974).

Regarding the case at bar, Congress frequently has relied upon

the Commerce Clause as authority for the enactment of statutes

regulating drug trafficking, see, e.g., 21 U.S.C. § 801, and courts

have consistently upheld congressional regulation of the class of

intrastate drug activities. See, e.g., United States v. Visman, 919

F.2d 1390, 1393 (9th Cir. 1990), cert. denied, 112 S. Ct. 442

15a

(1991); United States v. Montes-Zarate, 552 F.2d 1330, 1331

(9th Cir. 1977) (per curium), cert. denied, 435 U.S. 947 (1978).

Therefore, because intrastate sales of drug paraphernalia are

part of this properly regulated class, it follows that the drug

paraphernalia statute is a proper exercise of Congressional

power. See Lane, 883 F.2d at 1492 ("When Congress enacts a

statute under its commerce power, it is not constitutionally

obligated to require proof beyond a reasonable doubt that each

individual act in the class of activities regulated had an effect on

interstate commerce.").

Furthermore, the drug paraphernalia statute which Janus

challenges is part of the Comprehensive Drug Abuse Prevention

and Control Act of Title 21. In the legislative history of that act,

Congress specifically found that "Federal control of the intrastate

incidents of the traffic in controlled substances is essential to the

effective control of the interstate incidents of such traffic." 21

U.S.C. § 801(6). We regard drug paraphernalia to be part and

parcel of the “incidents of the traffic in controlled substances, "

and see no reason why Congress could not rely on that

connection to support § 863. Cf. Lane, 883 F.2d at 1492

(concluding that although Congress had made no interstate

commerce findings in 1988 when it enacted 18 US.C. § 245, it

had heard extensive evidence on the burdens racial discrimination

places on interstate commerce in connection with enacting the

1964 Civil Rights Act on which Congress could have relied): see

also United States v. Edwards, 13 F.3d 291, 294 (9th Cir. 1993)

(suggesting Congress was not required to conduct additional

hearings and make new findings regarding a specific statute

which would merely repeat prior findings). Therefore, we

conclude’ that Congress possessed power under the Commerce

Clause to enact § 863 and that Congress validly invoked that

power.

IV. Joinder/Severance

Janus next contends that joinder of the Marijuana count

with the paraphernalia counts was improper under Fed. R. Crim.

P. 8(a), or, alternatively, that the trial court abused its discretion

in denying severance under Fed. R. Crim. P. 14.

16a

A question of misjoinder under rule 8 is a question of

law, subject to de novo review. United States v. Hollis, 971

F.2d 1441, 1456 (10th Cir. 1992), cert. denied, 113 S. Ct. 1580

(1993); United States v. Cardall, 885 F.2d 656, 667 (10th Cir.

1989). According to Rule 8(a) joinder of offenses is proper if

the offenses are "of the same or similar character." United States

v. Holland, 10 F.3d 696, 699 (10th Cir. 1993), cert. denied sub

nom. Kelly v. United States, 114 S. Ct. 739 (1994); United

States v. Sturmoski, 971 F.2d 452, 460 (10th Cir. 1992). And

we have previously stated that Rule 8 "is construed broadly to

allow liberal joinder to enhance the efficiency of the judicial

system." United States v. Hopkinson, 631 F.2d 665, 668 (10th

Cir. 1980), cert. denied, 450 U.S. 969 (1981); see United States

v. Scott, 659 F.2d 585, 588 (Sth Cir. Unit B 1981) (providing

tule governing joinder is to be broadly construed in favor of

initial joinder), cert. denied, 459 U.S. 854 (1982); Haggard v.

United States, 369 F.2d 968, 973 (8th Cir. 1966) (stating broad

interpretation of rule governing joinder is encouraged in the

interest of more efficient administration of criminal tals), cert.

denied sub nom. Alley v. United s, 386 U.S. 1023 (1967).

In the present case, Count 161, knowingly engaging in the

manufacture of marijuana plants, is a drug offense in violation of

the Drug Abuse Prevention and Control Act of Title 21. Counts

2 and 3, knowingly and intentionally selling and offering for sale

drug paraphernalia, are also drug offenses in violation of the

same comprehensive act. We conclude, therefore, that the

joinder of Count 161 was proper under Rule 8(a) because it was

an offense of the "same or similar character." Cf. United States

v. Fortenberry, 919 F.2d 923, 925 (Sth Cir. 1990) (concluding

that because both charges were for weapons violations they were

of the same or similar character within the meaning of the rule

governing joinder of claims), cert. denied, 499 U.S. 930 (1991).

However, even in the absence of a misjoinder under Rule

8(a), the court may order the separate trials of counts "[ijf it

appears that a defendant .. . is prejudiced by a joinder of

offenses." United States v. Levine, 983 F.2d 165, 167 (10th Cir.

1992) (quoting Fed. R. Crim. P. 14). "In deciding on a motion

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for severance, the district court has a duty to weigh the prejudice

resulting from a single trial of counts against the expense and

inconvenience of separate trials." Hollis, 971 F.2d at 1456:

Cardall, 885 F.2d at 668. "The decision whether to grant or

deny severance is within the sound discretion of the trial court,

and will not be disturbed on appeal unless there is an affirmative

showing of an abuse of discretion." Id. at 667. "The burden of

the defendant to show an abuse of discretion in this context is a

difficult one." United States v. Valentine, 706 F.2d 282, 290

(10th Cir. 1983).

Before the district court, Janus attempted to justify the

severing of counts because "no reasonable Jury would be able to

decide the drug paraphernalia counts alone when the marihuana

count is tried along with it." Defs' Mot. for Severance, R. Vol.

1, Doc. 28. This rationale, however, does not mandate a

severance. "Neither a mere allegation that defendant would

have a better chance of acquittal in a separate trial, nor a

complaint of the ‘spillover effect’. . . is sufficient to warrant

severance.” Levine, 983 F.2d at 167 (quoting United States v.

Bailey, 952 F.2d 363, 365 (10th Cir. 1991)) (alteration in

original). Moreover, as the district court found, had separate

trials been granted, the evidence would likely have been

admissible anyway under Fed. R. Evid. 404(b) as showing intent.

See Hollis, 971 F.2d at 1457; see also United States v. Rabbitt,

583 F.2d 1014, 1022 (8th Cir. 1978), cert. denied, 439 U.S.

1116 (1979). The charges against Janus mainly dealt with

alleged drug paraphernalia. Consequently, Janus's intent was

paramount. Janus claimed that his business was a legitimate,

non-drug business as far as he knew; therefore, the presence of a

hidden garden and marijuana plants would be both relevant and

material on other counts. Under these circumstances we

conclude that the district court did not abuse its discretion in

refusing to sever the counts.

V. Prosecutorial Misconduct in Closing Argument

Janus argues that certain remarks of the prosecutor

during closing argument were so prejudicial as to deny him a fair

trial. During the rebuttal phase of closing argument the

|

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18a

prosecution said to the jury: "Make no mistake about the intent

of Mr. Janus. Make no mistake. This [sic] items are evil from

their conception and they were going to be used for an evil

purpose." R. Vol. 8 at 985. Janus objected, requesting that the

jury be instructed to disregard the "defamatory language about

things being evil." Id. The district judge, in overruling the

objection, stated: "It's a legitimate argument . . . I think [the

prosecution] is using [evil] interchangeably for the word illegal as

I understand it." Id. On appeal Janus claims that the

prosecution's comment was highly prejudicial and caused

incurable damage.

We agree with the district court that the prosecutor's

comment was not improper in context. The remark on its face

was fair argument. Furthermore, the prosecutor's comment

might be characterized as invited comment. In its closing

argument, as well as throughout trial, defense counsel maintained

that Janus was unaware the paraphernalia he was selling was

illegal. See, e.g., R. Vol. 8 at 966. The prosecution's comment

on rebuttal, therefore, appears to have been an attempt to

address one of the main factual issues in the case--that Janus

knew he was selling drug paraphernalia. We have repeatedly

recognized that considerable latitude is given the prosecutor in

closing argument in replying to an argument raised by defense

counsel's closing statenfent. United States v. Espinosa, 771 F.2d

1382, 1401 (10th Cir.), cert. denied sub nom. Foreman v. United

States, 474 U.S. 1023 (1985); United States v. Dickey, 736 F.2d

571, 596 (10th Cir. 1984), cert. denied sub nom. Beasley v.

United States, 469 U.S. 1188 (1985).

Assuming arguendo that the comment was improper

either intrinsically or as invited comment, it did not deprive Janus

of a fair trial because it was harmless. The comment was

singular and isolated. See United States v. Pena, 930 F.2d 1486,

1491 (10th Cir. 1991); United States v. Record, 873 F.2d 1373,

1376 (10th Cir. 1989). And the record consists of ample

evidence, independent of the alleged misconduct, which supports

the jury's verdict. The harmlessness was further bolstered by the

trial court's instruction to the jury that statements and arguments

19a

by the attorneys were not evidence and were not to be

considered in rendering a verdict. R. Vol. 8 at 924; see Pena,

930 F.2d 1491.

VI. Defendants' Jury Instructions

Next, Janus asserts that the trial judge erred in refusing

to give his tendered instruction No. 5 un his defense theory that

"he believed that his conduct was authorized by Federal, State

and local law." Appellants' Opening Br. at 43.

Janus's argument on this point suffers from the deficiency

that he fails to cite where in the record the proper objection was

made. See Fed. R. App. P. Tenth Cir. R. 28.2(d); see also

Jetcraft Corp. v. Flight Safety Int'l, 16 F.3d 362, 366 (10th Cir

1993), McGinnis v. Gustafson, 978 F.2d 1199, 1201 (10th Cir.

1992); Moore v. Subaru of Am., 891 F.2d 1445, 1448 (10th Cir.

1989). The cited portion of the record does not contain any

objection by the defendant or any court Tuling; it contains only a

brief discussion between defense counsel and the trial judge

regarding the tendered instruction Furthermore. our

independent review of the record reveals that the defendant in

fact failed to preserve the issue for appeal. Although preliminary

discussions between the trial judge and counsel suggested that

defendants’ tendered instruction No. 5 might be included in the

final instructions to the jury, see R. Vol. 8 at 901, the court

apparently excluded this instruction in its final version. Despite

this omission, and after the court had provided defense counsel

with a copy of its jury instguctions, defense counsel clearly stated

that he had no objections. Accordingly, we find defendant has

waived this issue on appeal. Janus has not asked us to address

this issue under the plain error standard, and we decline to do so

sua sponte.

Alternatively, we conclude in any event that there was no

error in failing to give the defendants’ tendered instruction.

When reviewing a claim of error relating to jury instructions, we

review the instructions as a whole. United States v. Haar, 931

F.2d 1368, 1371 (10th Cir. 1991). “Although a criminal

defendant is entitled to an instruction regarding his theory of the

case, a trial judge is given substantial latitude and discretion in

20a

tailoring and formulating the instructions," id. (quoting United

States v. Pack, 773 F.2d 261, 267 (10th Cir. 1985)), and the

court need not follow the exact language of a defense instruction

"as long as the court's instructions correctly state the law and

fairly and adequately cover the issues presented. Pack, 773 F.2d

at 267; United States v. Jenkins, 701 F.2d 850, 858 (10th Cir.

1983). Here we are satisfied that the charge as a whole

adequately instructed the jury, taking defendant Janus's theory

into account. The district court had, during trial, instructed the

jury that while a patent was not a license, it could be relevant as

to Janus's intent. R. Vol. 5 at 365-66. And, the instructions

given included a standard good faith instruction which noted that

good faith was a complete defense, and the burden was on the

Government to disprove it. R. Supp. Vol. II at 31-32.

Vil. Obstruction of Justice & Acceptance of

Responsibility

Finally, Janus contends that the district court erred in

enhancing his offense leyel by two for obstruction of justice

pursuant to United States Sentencing Commission, Guidelines

Manual §3C1.1, and by failing to grant a two-level reduction for

acceptance of responsibility pursuant to USSG §3E1.1. Once

again, however, the defendants have failed to include and

reference the portion of the record wherein their objections,

properly preserving these issues for appeal, may be found.

Because this is required by Tenth Circuit Rules 10.3.2(a) and

28.2 (c), (d), we leave the district court's determination

undisturbed. See Jetcraft, 16 F.3d at 366; McGinnis, 978 F.2d at

1201.

Assuming arguendo that these sentencing issues were

properly presented, we would reach the same conclusion. With

regards to the obstruction of justice issue, the guidelines require

a two-point increase "[i]f the defendant willfully obstructed or

impeded, or attempted to obstruct or impede, the administration

of justice during the investigation, prosecution, or sentencing of

the instant offense." USSG §3C1.1. We review the district

court's factual determinations as to the obstruction of justice

under the clearly erroneous standard, Hollis, 971 F.2d at 1460;

a a

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2la

United States v. Urbanek, 930 F.2d 1512, 1514 (10th Cir.

1991), and we review de novo questions involving legal

interpretations of the Sentencing Guidelines. United States v.

Gardiner, 931 F.2d 33, 34 (10th Cir. 1991); United States v.

Davis, 912 F.2d 1210, 1211 (10th Cir. 1990).

The district court gave two reasons for the enhancement.

First, "[Janus] removed items of merchandise from the premises

of his business after receiving information that other businesses

had been raided" and, expecting an imminent raid on his

premises, Janus “wished to conceal items of alleged

paraphernalia which might be seized." R. Vol. 1, Doc. 46 at 2.

Second, regarding the marijuana growing charge, "he uprooted

plants from his indoor garden and attempted to conceal them in

the bottom drawer of a dresser." Id. Based on our review of the

record, we cannot conclude that these factual findings are clearly

erroneous. Having made these findings, the district court

correctly applied the guidelines. The guidelines commentary

makes clear that the enhancement was intended to apply where a

defendant engages in "destroying or concealing . . . evidence that

is material to an official investigation . . . (e.g, shredding a

document or destroying ledgers upon learning that an official

investigation has commenced or is about to commence), or

attempting to do so." USSG §3C1.1 Application note 3(d).

This is precisely what the district court found to have happened

here. Therefore, we find no error.

Regarding the argument that Janus was improperly

denied a two point downward adjustment for his acceptance of

responsibility, the guidelines provide that the offense level should

be reduced "[i]f the defendant clearly demonstrates acceptance

of responsibility for his offense." USSG §3E1.1 The district

court's determination of acceptance of responsibility is a question

of fact that is reviewed under the clearly erroneous standard.

Hollis, 971 F.2d at 1459; United States v. Hernandez, 967 F.2d

456, 459 (10th Cir. 1992); United States v. Whitehead, 912 F.2d

448, 451 (10th Cir. 1990). As such, the trial court's

determination of whether Janus has accepted responsibility is

subject to great deference on review and should not be disturbed

22a

unless it is without foundation United States v. Amos, 984 F.2d

1067, 1071-72 (10th Cir. 1993). Janus argues that this is an

instance where a defendant who goes to trial nonetheless should

receive an adjustment of acceptance of responsibility because he

went to trial primarily to preserve an argument that the drug

paraphernalia statute is unconstitutional See USSG §3E1.1,

Application note 2. The district court judge, however, reached a

contrary conclusion: "I do not believe [Mr. Janus] . . . went to

trial only to preserve the constitutional point. His statement at

sentencing suggests a continued belief that he did nothing wrong

and indicates that his main regret is the fact that he got caught."

R. Vol. 1, Doc. 46 at 2. Having reviewed the record, we

conclude that the denial of reduction for defendant's alleged

acceptance of responsibility was not clearly erroneous.

The judgment of conviction and sentence imposed by the

district court are AFFIRMED.

ENTERED FOR THE COURT

Stephen H. Anderson

Circuit Judge

* This order and judgment is not binding precedent, except

under the doctrines of law of the case, res judicata, and collateral

estoppel. The court generally disfavors the citation of orders and

judgments; nevertheless, an order and judgment may be cited

under the terms and conditions of the court's General Order filed

November 29, 1993. 151 F.R.D. 470.

an The Honorable H. Dale Cook, Senior District Judge,

United States District Court for the Northern District of

Oklahoma, sitting by designation.

] Janus attempts to raise for the first time in his reply brief

on appeal that the affidavit was not attached to the warrant. We

decline to address this issue because it was neither considered

and ruled upon by the district court nor raised in the opening

23a

brief. See Lyons v, Jefferson Bank & Trust, 994 F.2d 716, 720-

22 (10th Cir. 1993); FDIC. v. Daily 973 F.2d 1525, 1530

(10th Cir. 1992)

2 21 U.S.C. § 863(a)(1) provides: “It shall be unlawful for

any person--(1) to sell or offer for sale drug paraphernalia."

3 At the jury instruction conference the following

exchange occurred ;

THE COURT: Instruction number 5 is the so-

called patent defense. 1 do not intend to give that, Mr.

Eldridge. I don't think that a patent is something you can

hang your hat on.

MR. ELDRIDGE: I think that also applies to

the Customs importation, Judge.

THE COURT: Well, I don't think that the mere

fact that an article has cleared Customs or evidently has

cleared Customs by virtue of a Stamp is a complete

defense. We can consider that. Mr. Janus testified that

he honestly thought that, and I suppose that's part of his

good faith defense. So, I'll--I'll give it then, but I don't--I

don't think the fact that an item has cleared Customs

makes it or gives it an automatic exception.

R. Vol. 8 at 901.

4 During the afternoon session of the instruction

conference the following exchanges occurred:

THE COURT: Call the jury in, please.

MR. ELDRIDGE: Excuse me, Your Honor.

Before you do that, I've looked at all the instructions. I

don't have any objection the way they are

THE COURT: All right.

MR. ELDRIDGE:--with the exception of

number 2.5 which appears on page 16. And I just didn't

know why you were going to give that one, the

presumption of regularity.

24a

THE COURT: Would counsel approach the

bench? Does government have any objections on

instructions?

MS. TAFOYA: No, Your Honor.

THE COURT: Does the government have any

objections to the instructions as read?

MS. TAFOYA: No.

THE COURT: Does the defendant have any

objections to the instructions?

MR. ELDRIDGE: No.

THE COUKT: Any objections to the

instructions as read?

MR. ELDRIDGE: No.

R. Vol. 8 at 998-99.

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25a

UNITED STATES DISTRICT COURT

District of Colorado

UNITED STATES OF AMERICA

V. Case Number 93-CR-233-02

JANUS INDUSTRIES

d/b/a Acapulco Smoke Shop

Defendant.

JUDGMENT IN A CRIMINAL CASE

(For Offenses Committed On or After November 1, 198’)

The defendant, JANUS INDUSTRIES, was represented

by Wade Eldridge.

The defendant was found guilty on count(s) 1 and 2 after

a plea of not guilty. Accordingly, the defendant is adjudged

guilty of such count(s), involving the following offense(s):

Title & Section Nature of Offense

21 USC 863(a) UNLAWFUL SALE OF DRUG

and 18 USC 2 PARAPHERNALIA

Date Offense Concluded Count Number(s)

11/25/91 2

As pronounced on January 21, 1994, the defendant is

sentenced as provided in pages 2 through 3 of this Judgment.

The sentence is imposed pursuant to the Sentencing Reform Act

of 1984.

It is ordered that the defendant shall pay to the United

States a special assessment of $400.00, for count(s) 1 and 2,

which shall be due immediately.

26a

It is further ordered that the defendant shall notify the

United States Attorney for this district within 30 days of any

change of name, residence, or mailing address until all fines,

restitution, costs, and special assessments imposed by this

Judgment are fully paid.

Signed this day of , 19

EDWARD W. NOTTINGHAM, Judge

United States District Court

Defendant's address) 3520 BRIGHTON BOULEVARD,

DENVER, COLORADO 80216

Defendant: JANUS INDUSTRIES

Case Number: 93-CR-233-02

PROBATION

The defendant is hereby placed on probation for a term

of 5 year(s).

While on probation, the defendant shall not commit

another federal, state, or local crime; shall comply with the

standard conditions that have been adopted by this court (set

forth below); and shall comply with the following additional

conditions:

1. Defendant shall provide the Probation Officer access to

any requested financial information.

2. Defendant shall pay a fine of $14,000.00 as set forth

in this judgment.

3 No restitution is ordered.

STANDARD CONDITIONS OF PROBATION

27a

While the defendant is on probation pursuant to this

Judgment:

1)

2)

3)

4)

5)

6)

7)

8)

9)

10)

The defendant shall not leave the judicial district without

the permission of the court or probation officer.

The defendant shall report to the probation officer as

directed by the court or probation officer and shall

submit a truthful and complete written report within the

first five days of each month.

The defendant shall answer truthfully all inquiries by the

probation officer and follow the instructions of the

probation officer.

The defendant shall support his or her dependents and

meet other family responsibilities.

The defendant shall work regularly at a lawful

occupation unless excused by the probation officer for

schooling, training, or other acceptable reasons.

The defendant shall notify the probation officer within

seventy-two hours of any change in residence or

employment.

The defendant shall refrain from excessive use of alcohol

and shall not purchase, possess, use, distribute or

administer any narcotic or other controlled substance, or

any paraphernalia related to such substances.

The defendant shall not frequent places where controlled

substances are illegally sold, used. distributed, or

administered.

The defendant shall not associate with any persons

engaged in criminal activity, and shall not associate with

any person convicted of a felony unless granted

permission to do so by the probation officer.

The defendant shall permit a probation officer to visit

him or her at any time at home or elsewhere and shall

permit confiscation of any contraband observed in plain

view by the probation officer.

11)

12)

13)

28a

The defendant shall notify the probation officer within

seventy-two hours of being arrested or questioned by a

law enforcement officer.

The defendant shall not enter into any agreement to act

as an informer or a special agent of a law enforcement

agency without the permission of the court.

As directed by the probation officer, the defendant shall

notify third parties of risks that may be occasioned by the

defendant's criminal record or personal history-or

characteristics, and shall permit the probation officer to

make such notifications and to confirm the defendant's

compliance with such notification requirement.

Defendant: JANUS INDUSTRIES

Case Number: 93-CR-233-02

FINE

The defendant shall pay a fine of $14,000.00.

This fine shall be paid immediately or in equal monthly

installments of $270.00 during term of probation.

If the fine is not paid, the court may sentence the

defendant to any sentence which might have been originally

imposed. See 18 U.S.C. § 3614.

29a

UNITED STATES DISTRICT COURT

District of Colorado

Case Number 93-CR-233-01

UNITED STATES OF AMERICA

V.

JAMES B. JANUS

Defendant.

JUDGMENT IN A CRIMINAL CASE

(For Offenses Committed On or After November 1, 1987)

The defendant, JAMES B. JANUS, was represented by

Wade Eldridge.

The defendant was found guilty on count(s) 1, 2 and 3

after a plea of not guilty. Accordingly, the defendant is adjudged

guilty of such count(s), involving the following offense(s):

Tide & Section Nature of Offense

21 USC 863(a)(1) UNLAWFUL SALE OF DRUG

and 18 USC 2 PARAPHERNALIA

21 USC 841(a)(1) AID AND ABET THE

and 18 USC 2 MANUFACTURE OF MARIJUANA

Date Offense Concluded Count Number(s)

11/25/91 3

1/29/913 3

30a

As pronounced on January 21, 1994, the defendant is

sentenced as provided in pages 2 through 4 of this Judgment.

The sentence is imposed pursuant to the Sentencing Reform Act

of 1984.

It is ordered that the defendant shall pay to the United

States a special assessment of $150.00, for count(s) 1, 2 and 3,

which shall be due immediately

It is further ordered that the defendant shall notify the

United States Attorney for this district within 30 days of any

change of name, residence, or mailing address until all fines,

restitution, costs, and special assessments imposed by this

Judgment are fully paid.

Signed this day of Po aie

EDWARD W. NOTTINGHAM, Judge

United States District Court

Defendant's SSN: 064-38-9412

Defendant's Date of Birth: August 7, 1947

Defendant's address: “3520 BRIGHTON BOULEVARD,

DENVER, COLORADO 80216

Defendant: JAMES B. JANUS

Case Number: 93-CR-233-01

IMPRISONMENT

The defendant is hereby committed to the custody of the

United States Bureau of Prisons to be imprisoned for a term of

24 months.

The Court makes the following recommendations to the

Bureau of Prisons: Defendant shall receive credit for one day

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spent in Federal custody. The Court further recommends

defendant be designated to FPC, Erslewood.

The defendant shall surrender to the United States

Marshal for this district at 10:25 a.m. on January 21, 1994.

RETURN

I have executed this Judgment as follows:

Defendant delivered on to at

with a certified copy of this Judgment.

United States Marshal

By

Deputy Marshal

Defendant: JAMES B. JANUS

Case Number: 93-CR-233-01

SUPERVISED RELEASE

Upon release from imprisonment, the defendant shall be

on supervised release for a term of 2 years.

While on supervised release, the defendant shall not

commit another federal, state, or local crime; shall not illegally

possess a controlled substance; shall not possess a firearm or

destructive device; shall comply with the standard conditions that

have been adopted by this court (set forth below); and shall

comply with the following additional conditions:

1. Defendant shall report in person to the probation office

in the district to which the defendant is released within

72 hours of release from the custody of the Bureau of

Prisons.

32a

2. Defendant shall participate in a program of testing and

treatment for drug abuse as directed by the Probation

Officer until released from the program by the Probation

Officer. Defendant shall refrain from excessive use of

alcohol during treatment. Defendant shall pay the costs

of treatment.

b Defendant shall provide the Probation Officer access to

any requested financial information.

4. Defendant will not incur new credit charges or open

additional lines of credit without the approval of the

Probation Officer, unless he is in compliance with all

periodic payment obligations imposed pursuant to the

Court's judgment and sentence.

5. Defendant shall pay a fine of $50,000.00 as set forth

in this judgment.

6. No restitution is ordered.

STANDARD CONDITIONS OF SUPERVISION

| While the defendant is on supervised release pursuant to

| this Judgment:

1) The defendant shall not leave the judicial district without

the permission of the court or probation officer.

2) The defendant shall report to the probation officer as

directed by the court or probation officer and shall

submit a truthful and complete written report within the

first five days of each month.

3) The defendant shall answer truthfully all inquiries by the

| probation officer and follow the instructions of the

| probation officer.

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4)

5)

6)

7)

8)

9)

10)

11)

12)

13)

33a

The defendant shall support his or her dependents and

meet other family responsibilities.

The defendant shall work regularly at a lawful

occupation unless excused by the probation officer for

schooling, training, or other acceptable reasons.

The defendant shall notify the probation officer within

seventy-two hours of any change in residence or

employment.

The defendant shail refrain from excessive use of alcohol

and shall not purchase, possess, use, distribute or

administer any narcotic or other controlled substance, or

any paraphernalia related to such substances.

The defendant shall not frequent places where controlled

substances are illegally sold, used, distributed, or

administered.

The defendant shall not associate with any persons

engaged in criminal activity, and shall not associate with

any person convicted of a felony unless granted

permission to do so by the probation officer.

The defendant shall permit a probation officer to visit

him or her at any time at home or elsewhere and shall

permit confiscation of any contraband observed in plain

view by the probation officer.

The defendant shall notify the probation officer within

seventy-two hours of being arrested or questioned by a

law enforcement officer.

The defendant shall not enter into any agreement to act

as an informer or a special agent of a law enforcement

agency without the permission of the court.

As directed by the probation officer, the defendant shall

notify third parties of risks that may be occasioned by the

defendant's criminal record or personal history or

characteristics, and shall permit the probation officer to

make such notifications and to confirm the defendant's

compliance with such notification requirement.

Defendant: JAMES B. JANUS

34a

Case Number: 93-CR-233-01

FINE

The Court has determined that the defendant does not

have the ability to pay interest, and it is accordingly ordered that

the interest requirement is waived.

The defendant shall pay a fine of $50,000.00.

This fine shall be paid immediateiy or in equal monthly

installments of $2,100.00 per month during term of supervised

release.

If the fine is not paid, the court may sentence the

defendant to any sentence which might have been originally

imposed. See 18 U.S.C. § 3614.

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35a

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Criminal Case No. 93-CR-233

UNITED STATES OF AMERICA,

Plaintiff.

V.

JAMES B. JANUS and

JANUS INDUSTRIES,

d/b/a Acapulco Smoke Shop.

INDICTMENT

I8 U.S.C. §2

18 U.S.C. § 545

18 U.S.C. § 1956 (a)(1)(A)(i)

21 U.S.C. § 841(a)(1)

21 U.S.C. § 857(a)(1)

21 U.S.C. § 863(a)(1)

THE GRAND JURY CHARGES THAT:

AT ALL TIMES MATERIAL TO THIS INDICTMENT:

1. The Defendant, JANUS INDUSTRIES d/b/a

Acapulco Smoke Shop, located in the District of Colorado, was

a corporation incorporated in the State of Colorado and a

wholesaler, manufacturer and retailer of drug paraphernalia and

related items in the District of Colorado end elsewhere.

2 The Defendant, JAMES B. JANUS, was the

president and sole owner of JANUS INDUSTRIES d/b/a

Acapulco Smoke Shop.

36a

3. For purposes of this indictment, the term "drug

paraphernalia" means:

a. any equipment, products, and materials which are

primarily intended and designed for use in manufacturing,

compounding, converting, concealing, producing, processing,

preparing, injecting, ingesting, inhaling, or otherwise introducing

into the human body controlled substances, possession of which

is unlawful under the Controlled Substances Act [21 U.S.C.

§801 et seq] including but not limited to items primarily

intended or designed for use in ingesting, inhaling, or otherwise

introducing marijuana, cocaine, hashish, hashish oil, PCP, and

amphetamines into the human body, such as:

1) Metal, wooden, acrylic, glass, stone, plastic and

ceramic pipes with or without screens, permanent

screens, hashish heads, or punctured metal bowls;

2) Water pipes;

3) Carburetion tubes and devices;

4) Roach clips: meaning objects used to hold burning

material, such as a marijuana cigarette, that has become

too small or too short to be held in the hand;

5) Miniature spoons with level capacities of one-tenth

cubic centimeter or less;

6) Chamber pipes;

7) Carburetor pipes;

8) Chillums;

9) Bongs; and

10) Ice pipes or chillers;

b. In determining whether an item constitutes drug

paraphernalia, in addition to all other logically relevant factors,

the following may be considered:

1) instructions, oral or written, provided with the item

concerning its use;

2) descriptive materials accompanying the item which

explain or depict its use;

3) national and local advertising concerning its use;

250 ee ata OTRO EEO ONIN OR i ed at oT NT

37a

4) the manner in which the item is displayed for sale:

5) whether the owner, or anyone in control of the item, is

a legitimate supplier of like or related items to the

community, such as a licensed distributor or dealer of

tobacco products;

6) direct or circumstantial evidence of the ratio of sales

of the items(s) to the total sales of the business

enterprise; :

7) the existence and scope of legitimate uses of the item

in the community, and

8) expert testimony concerning its use:

c. Exceptions include:

1) any person authorized by local, State, or Federal law

to manufacture, possess, or distribute such items; or

2) any item that, in the normal lawful course of business

is imported, exported, transported, or sold through the

mail or by any other means, and primarily or traditionally

intended for use with tobacco products, including any

pipe, paper, or accessory.

4. The scheme to sell drug paraphernalia engaged in by

JAMES B. JANUS and JANUS INDUSTRIES, d/b/a Acapulco

Smoke Shop proceeded as follows:

1991,

From on or about August 1988 through November 25,

a. Defendants ordered various items of drug

paraphernalia from suppliers outside the state and district

of Colorade including Pacific Laboratories, California

Trifles, Fine Line Products, Award Distributing and

others through catalogues of the suppliers.

b. The orders were originally placed by the

generation of a uniquely numbered JANUS

INDUSTRIES Purchase Invoice.

c. The product was shipped from the supplier

located in a state outside Colorado via United Postal

Service or other interstate carrier, which at all times

relevant was a facility and conveyance in interstate

38a

commerce, to JANUS INDUSTRIES at 3520 Bnghton

Blvd., Denver, Colorado.

d. When the product was received, the

Defendants issued or caused to be issued a uniquely

numbered check drawn on a JANUS INDUSTRIES

bank account and payable to the supplier for the

merchandise.

e. The check was sent from JANUS

INDUSTRIES in Denver, Colorado, via United States

mail, a facility of interstate commerce, to the out-of-state

supplier for payment for drug paraphernalia.

f. At all relevant times, the Defendants created

and caused to be published a catalogue entitled "JANUS

INDUSTRIES INC." and depicting various items of

drug paraphernalia offered for sale and transportation by

JANUS INDUSTRIES.

g. The merchandise was then given a JANUS

INDUSTRIES stock number comporting to items in the

JANUS INDUSTRIES catalogue.

h. The Defendants then sold the recently

purchased drug paraphernalia to customers Cosmic

Creations, Home Sweet Home, Rolling Stone, Heads of

State, Independent Records and Tapes, Mike's Imports,

Outer Limits, Mellow Yellow, Silverstone and others by

generating a uniquely numbered sales invoice number.

1. When the payment was_ received

corresponding to the sales invoice number, the funds

were deposited into the same JANUS INDUSTRIES

account which had originally been used to pay for the

item from the out of state supplier.

j. The funds accumulated in the bank account

were then utilized to purchase more drug paraphernalia

from Pacific Laboratories, California Trifles, Fine Line

Products and others.

39a

k. It was further part of the scheme that, in an

attempt to avoid and evade the law and to continue to

sell drug paraphernalia in violation of the law, the

Defendants created a marketing strategy consisting of

various ploys and strategies to avoid and evade the drug

paraphernalia statutes, including the federal drug

paraphernalia statute, such as:

1) specific vocal or written instructions provided

with an item falsely claiming its use to ingest

tobacco;

2) descriptive materials accompanying the item

which falsely explained or depicted its use to

ingest tobacco; and

3) displaying drug paraphernalia in such a way to

obscure its primarily intended or designed use

with marijuana and narcotics.

Such a scheme to utilize the Postal Service and other

interstate conveyance as part of a scheme to sell drug

paraphernalia was at all times in violation of Title 21, United

States Code, Section 857(a)(1).

OUNT 1

From on or about August 1, 1988 through November

29, 1990, in the State and District of Colorado, the Defendants,

JAMES B. JANUS and JANUS INDUSTRIES, d/b/a/Acapulco

Smoke Shop, did knowingly and intentionally make use of the

services of the Postal Service or other interstate conveyance as

part of a scheme to sell drug paraphernalia.

All in violation of Title 21, United States Code, Section

857(a)(1) and Title 18, United States Code, Section 2.

UNT 2

From on or about November 29, 1990 through January

29, 1991, in the State and District of Colorado, the Defendants,

JAMES B. JANUS and JANUS INDUSTRIES, d/b/a Acapulco

Smoke Shop, did knowingly and intentionally sell and offer for

40a

sale drug paraphernalia as described in Title 21, United States

Code, Section 863(d).

All in violation of Title 21, United States Code, Section

863(a)(1) and Title 18, United States Code, Section 2.

COUNT 3

On or about November 25, 1991, in the State and

District of Colorado, the Defendants, JAMES B. JANUS and

JANUS INDUSTRIES, d/b/a Acapulco Smoke Shop, did

knowingly and intentionally sell and offer for sale drug

paraphernalia as described in Title 21, United States Code,

Section 863(d).

All in violation of Title 21, United States Code, Section

863(aX(1) and Title 18, United States Code, Section 2.

COUNT 4

On or about January 29, 1991, the Defendants, JAMES

B. JANUS and JANUS INDUSTRIES, d/b/a Acapulco Smoke

Shop, knowingly received and sold and facilitated the

transportation and sale of merchandise imported into the United

States contrary to law, to wit: drug paraphernalia in violation of

Title 21 § 863(a).

All in violation of Title 18, United States Code, Section

545. 4

COUNT 5

On or about November 25, 1991, the Defendants,

JAMES B. JANUS and JANUS INDUSTRIES, d/b/a Acapulco

Smoke Shop, knowingly received and sold and facilitated the

transportation and sale of merchandise imported into the United

States contrary to law, to wit: drug paraphernalia in violation of

Title 21 § 863(a).

All in violation of Title 18, United States Code, Section

545.

COUNTS 6 THROUGH 44

THE GRAND JURY FURTHER CHARGES THAT

From on or about August 1, 1988, up to and including

January 28, 1991, in the State and District of Colorado and

re

4la

elsewhere, the Defendants JAMES B. JANUS and JANUS

INDUSTRIES, d/b/a Acapulco Smoke Shop, did knowingly,

willfully and unlawfully conduct and attempt to conduct a

financial transaction, to wit: a check drawn on funds deposited

in a financial institution, Metro Bank of Denver, a/k/a Cherry

Creek National Bank, affecting interstate and foreign commerce,

knowing that the property involved in the financial transaction

represented the proceeds from an unlawful activity, to wit:

violations of Title 21 U.S.C. § 857(a)(1) and later superseded by

Title 21 U.S.C. § 863(a\(1) and thereby conducted and

attempted to conduct such financial transaction, which in fact

involved the proceeds of said unlawful activity with the intent to

promote the carrying on of said unlawful activity:

CHECK CHECK

COUNT DATE NUMBER PAYEE AMOUNT

6 08/10/88 11646 California Trifles $1,020.32

7 08/24/88 11657 California Trifles 1,269.87

8 09/30/88 11686 California Trifles 1,499.86

9 11/15/88 11750 California Trifles 774.57

10 11/28/88 11762 California Trifles 113.07

1] 12/20/88 11799 California Trifles 1,457.76

12 12/28/88 11805 California Trifles 363.50

13 01/17/89 11834 California Trifles 40.51

14 = 02/10/89 +=—:11860 —— California Trifles 1,099.88

15 02/20/89 11867 California Trifles 976.19

16 03/29/89 11917 California Trifles 817.70

17 04/17/89 11940 California-Trifles 2,235.81

18 04/24/89 11951 California Trifles 106.69

19 05/08/89 11963 California Trifles 613.49

20 06/01/89 12001 California Trifles 72.15

21 08/08/89 12079 California Trifles 1,729.85

=s——

LS: A cs

42a

22 10/10/89 12167 California Trifles 1,093.20

23 10/25/89 12192 California Trifles 252.88

24 11/08/89 12202 California Trifles 945.42

25 11/08/88 11746 ‘Fine Line Products 944.16

26 11/28/88 11763 ‘Fine Line Products 1,190.41

27 03/13/89 11901 Fine Line Products 1,450.51

28 03/20/89 11906 Fine Line Products 3,888.78

29 04/17/89 11941 Fine Line Products 694.60

30 06/27/89 12022 Fine Line Products 82.11

31 08/10/89 12090 Fine Line Products 257.10

32 09/28/89 12148 Fine Line Products 125.49

33 11/15/89 12213 Fine Line Products 540.01

34 07/25/90 12536 Fine Line Products 378.57

35 07/22/88 11616 Pacific Laboratories 423.13

36 10/31/88 11728 Pacific Laboratories 647.75

37 11/30/88 11766 Pacific Laboratories 769.72

38 02/03/89 11850 Pacific Laboratories 937.93

39 03/22/89 11909 Pacific Laboratories 386.44

40 05/10/89 11974 Pacific Laboratories 2,091.45

4] 10/06/89 12166 Pacific Laboratories 1,858.04

42 03/29/90 12378 Pacific Laboratories 953.50

43 07/25/90 12541 Pacific Laboratories 529.02

44 11/30/88 11768 Award Distributing 729.51

All in violation of Title 18, United States Code, Sections

1956(a)(1)(A)(i) and 2.

T 45 H 160

THE GRAND JURY FURTHER CHARGES THAT:

From on or about August 1, 1988, up to and including

January 28, 1991, in the State and District of Colorado and

elsewhere, the Defendants JAMES B. JANUS and JANUS

INDUSTRIES, d/b/a Acapulco Smoke Shop, did knowingly,

willfully and unlawfully conduct and attempt to conduct a

financial transaction, to wit: a deposit in a financial institution,

Metro Bank of Denver, a/k/a Cherry Creek National Bank,

affecting interstate and foreign commerce, knowing that the

43a

property involved in the financial transaction represented the

proceeds from an unlawful activity, to wit: violations of Title 21

U.S.C. § 857(a)(1) and as later superseded by Title 21 U.S.C. §

863(a)(1) and thereby conducted and attempted to conduct such

financial transaction, which in fact involved the proceeds of said

unlawful activity with the intent to promote the carrying on of

said unlawful activity:

DEPOSIT DEPOSIT

COUNT DATE NUMBER AMOUNT

45 08/09/88 604 $4,338.42

46 08/16/88 605 1,871.56

47 08/23/88 606 3,234.71

48 09/02/88 607 2,084.18

49 09/13/88 608 5,126.18*

50 09/20/88 609 2,738.35

5] 09/28/88 610 171.74

52 10/06/88 611] 4,392.77

53 10/12/88 612 2,026.38*

54 10/21/88 613 3,292.22

55 10/26/88 614 2,164.41

56 11/02/88 615 2,477.29*

57 11/09/88 616 4,490.32

58 11/15/88 617 1,785.97*

59 11/22/88 618 2,721.03

60 12/05/88 619 5,309.00*

61 12/13/88 620 4,367.06*

62 12/20/88 621 4,629.81

63 12/28/88 622 4,350.20*

64 01/04/89 623 3,625.16

65 01/11/89 624 3,156.74*

66 01/17/89 625 2,488.25

01/24/89

02/02/89

02/08/89

02/15/89

02/24/89

03/02/89

03/08/89

03/14/89

03/21/89

03/29/89

04/04/89

04/11/89

04/19/89

04/25/89

05/02/89

05/09/89

05/17/89

05/25/89

06/02/89

06/08/89

06/15/89

06/21/89

06/27/89

07/05/89

07/11/89

07/18/89

07/25/89

08/02/89

08/08/89

08/18/89

08/22/89

09/06/89

09/12/89

09/19/89

09/27/89

44a

626

627

628

629

630

631

632

633

634

635

636

637

638

639

650

651

652

653

654

655

656

657

658

659

660

6,424.78

1,639.81*

3,627.63

2,392.98

2,177.63

2,643.11*

2,205.55

5,496.90*

2,026. 15*

2,699.04

2,492.36

4,884.97

2,047.45

1,655.95*

2,757.37

3,092.09*

2,063 .24*

3,026.43

4,020.10

3,370.24

5,157.57

2,241.39*

2,806.93

1,664.27

2,939.93

1,872.78

2,981.33*

2,956.91

3,679.05

2,716.55

2,152.28

8,066.74

4,025.75

3,260.73

858.46

102

103

104

105

106

107

108

109

110

111

112

113

114

115

116

117

118

119

120

121

122

123

124

125

126

127

128

129

130

13]

132

133

134

135

136

10/03/89

10/10/89

10/18/89

10/25/89

11/03/89

11/10/89

11/14/89

11/22/89

12/01/89

12/08/89

12/12/89

12/19/89

12/27/89

01/03/90

01/09/90

01/17/90

02/02/90

02/14/90

02/23/90

03/02/90

03/13/90

03/20/90

03/28/90

04/03/90

04/10/90

04/18/90

04/25/90

05/02/90

05/09/90

05/15/90

05/23/90

06/04/90

06/12/90

06/26/90

07/05/90

45a

3,292.13

4,572.20

2,367.71

4,636.73

747.94

2,096.77

2,368.69

1,513.20*

2,494.07"

1,499.18

4,450.04*

1,660.25*

1,548.34

2,168.50

4,514.73

3,466.08*

5,561.00

5,616.59

4,003.19

2,811.23

3,142.59

1,878.92

3,956.48

2,797.55

4,265.83

3,118.99

3,689.36

2,366.63*

1,611.64

2,613.00*

1,797.15

2,279.93

2,903.00

2,473.71

2,718.25*

46a

137 07/12/90 696 1,333.39*

138 07/18/90 697 2,503.88

139 07/25/90 698 1,527.16*

140 08/01/90 699 2,841.10

141 08/07/90 700 3,779.41

142 08/14/90 701 2,074.90

143 08/23/90 702 1,264.03

144 09/05/90 703 1,718.40*

145 09/12/90 704 3,532.97

146 09/26/90 705 1,107.47

147 10/02/90 706 905.04*

148 10/11/90 707 2,027.25

149 10/16/90 708 2,517.70

150 10/23/90 709 1,721.86

15] 11/02/90 710 2,312.65

152 11/08/90 711 aaae.Fi"

153 11/14/90 - 712 1,403.79

154 11/20/90 713 1,004.70

155 11/28/90 714 1,018.37

156 12/05/90 715 1,652.31

157 12/12/90 716 3,874.94

158 12/19/90. 717 1,767.29

159 12/27/90 718 1,453.99

160 01/04/91 719 2,026.43

(*Funds not involved in the drug paraphernalia scheme or the

sale or offer for sale of drug paraphernalia, such as transfers

between accounts, have been deleted from the deposit form

total.)

All in violation of Title 18, United States Code, Sections

1956(a)(1)(A)(i) and 2.

COUNT 161

On or about January 29, 1991, in the State and District

of Colorado, the defendant, JAMES B. JANUS, did knowingly

and intentionally engage in the manufacture production, planting,

cultivation and growing and aid, abet and cause the manufacture,

47a

production, etc. of marihuana plants, a Schedule I controlled

substance in violation of the laws of the United States of

America as set forth in Title 21, United States Code, to wit: 21

U.S.C. §§ 841(a)(1) and (6)1)D) making it a crime to

knowingly engage in the manufacture, production, etc. of

marihuana plants, to wit: less than 50 marihuana plants.

All in violation of Title 21, United States Code, Sections

841(a)(1) and 841(b)(1)(D) and Title 18, United States Code,

Section 2.

C 162

FORFEITURE WITH RESPECT TO COUNT 2

The Allegations of Count 2 of the Indictment are re-

alleged and by this reference are fully incorporated herein for the

purpose of alleging forfeitures to the United States of America

pursuant to the provisions of Title 21, U.S.C. § 863(c).

The Defendants, JAMES B. JANUS and JANUS

INDUSTRIES, d/b/a Acapulco Smoke Shop, if convicted on

Count 2 of this Indictment charging a violation of Title 21,

United States Code, Section 863, shall forfeit to the United

States of America pursuant to Title 21, United States Code,

Section 863(c) all drug paraphernalia seized pursuant to search

warrant executed January 29, 1991, such property being drug

paraphernalia as described in Title 21, United States Code,

Section 863(d).

Pursuant to Title 21, United States Code, Section

863(c).

COUNT 163

FORFEITURE WITH RESPECT TO COUNT 3

The Allegations of Count 3 of the Indictment are re-

alleged and by this reference are fully incorporated herein for the

purpose of alleging forfeitures to the United States of America

pursuant to the provisions of Title 21, U.S.C. § 863(c).

The Defendants, JAMES B. JANUS and JANUS

INDUSTRIES, d/b/a Acapulco Smoke Shop, if convicted on

Count 3 of this Indictment charging a violation of Title 21,

48a

United States Code, Section 863, shall forfeit to the United

States of America pursuant to Title 21, United States Code,

Section 863(c) all drug paraphernalia seized pursuant to search

warrant executed November 25, 1991, such property being drug

paraphernalia as described in Title 21, United States Code,

Section 863(d).

Pursuant to Title 21, United States Code, Section

863(c).

COUNT 164

FORFEITURE WITH RESPECT TO COUNTS 6

THROUGH 160

The Allegations of Counts 6 through 160 of the

Indictment are re-alleged and by this reference are fully

incorporated herein for the purpose of alleging forfeitures to the

United States of America pursuant to the provisions of Title 18,

U.S.C. § 982.

As a result of the offenses alleged in Counts 6 through

160, the Defendants, JAMES B. JANUS and JANUS

INDUSTRIES, d/b/a Acapulco Smoke Shop, shall forfeit to the

United States of America pursuant to Title 18, United States

Code, Section 982, any property, real and personal involved in

the offenses or which is traceable to such property, and any of

the Defendants’ other property as a substitute for the above-

described property, including but not limited to $330,615.27 in

United States currency and all interest and proceeds traceable

thereto, in that such sum in aggregate is property which was

involved in the aforestated offenses or is traceable to such

property, in violation of Title 18, United States Code, Sections

1956 and 982.

If any of the property described above as being subject to

forfeiture, as a result of any act or omission of the Defendants:

1. Cannot be located upon the exercise of due

diligence;

2. Has been transferred or sold to, or deposited

with a third person;

49a

3. Has been placed beyond the jurisdiction of the

Court;

4. Has been substantially diminished in value; or

5. Has been commingled with other property which

cannot be subdivided without difficulty; it is the intent of the

United States, pursuant to Title 18, United States Code, Section

982(b)(1) to seek forfeiture of any other property of said

Defendants up to the value of the above forfeitable property, that

is $330,615.27, including but not limited to the following:

1. 3520 Brighton Boulevard, Denver, Colorado,

with all appurtenances, fixtures, and attachments

thereon, and the rents, profits, and proceeds

therefrom (the "Store"); and

§ 7050 W. 8th Place, Lakewood, Colorado, with

all appurtenances, fixtures and attachments

thereon, and the rents, profits, and proceeds

therefrom (the "House"); and

3. All monies, accounts, certificate of deposit,

cashier's checks, deposits, contents of safe

deposit boxes at Colorado Bank North East in

which JAMES 8B. JANUS, JANUS

INDUSTRIES, INC., and/or Acapulco Smoke

Shop, Inc., has/have a legal or beneficial interest,

together with all interest accrued or to be

accrued thereon and the proceeds therefrom,

(the "Colorado Bank North Account"); and

4. All monies, accounts, certificate of deposit,

cashier's checks, deposits, contents of safe

deposit boxes at Cherry Creek National Bank in

which JAMES 8B. JANUS, JANUS

INDUSTRIES, INC., and/or Acapulco Smoke

Shop, Inc., has/have a legal or beneficial interest,

together with all interest accrued or to be

accrued thereon and the proceeds therefrom,

50a

(the "Cherry Creek National Bank Account”);

and

All monies, accounts, certificate of deposit,

cashier's checks, deposits, contents of safe

deposit boxes at Metro Bank of Denver in which

JAMES B. JANUS, JANUS INDUSTRIES,

INC., and/or Acapulco Smoke Shop, Inc.,

has/have a legal or beneficial interest, together

with all interest accrued or to be accrued thereon

and the proceeds therefrom, (the“’Metro Bank of

Denver Account"); and

All monies, accounts, certificate of deposit,

cashier's checks, deposits, contents of safe

deposit boxes at Cherry Creek National Bank in

which JAMES 8B. JANUS, JANUS

INDUSTRIES, INC., and/or Acapulco Smoke

Shop, Inc.,-has/have a legal or beneficial interest,

together with all interest accrued or to be

accrued thereon and the proceeds therefrom,

(the "Cherry Creek National Bank Account"),

and

All monies, accounts, certificate of deposit,

cashier's checks, deposits, contents of safe

deposit boxes at Columbia Savings in which

JAMES B. JANUS, JANUS INDUSTRIES,

INC., and/or Acapulco Smoke Shop, Inc.,

has/have a legal or beneficial interest, together

with all interest accrued or to be accrued thereon

and the proceeds therefrom, (the "Columbia

Savings Account"); and

All in violation of Title 18, United States Code, Section 982

COUNT 165

FORFEITURE WITH RESPECT TO COUNTS 2, 3, AND

161

5la

On or about January 29, 1991, the real property located

at 3520 Brighton Boulevard, Denver, Colorado, all within the

District of Colorado, including all right, title, and interest in the

whole or the lot or tract of land and any and all appurtenances or

improvements, was used in whole and in part to facilitate the

commission of a violation of Title 21, United States Code,

Section 841(a), and Title 21 U.S.C. § 863(a);felonies punishable

by more than one year's imprisonment, and is therefore forfeited

to the United States of America to the extent of the interests of

JAMES B. JANUS and JANUS INDUSTRIES d/b/a Acapulco

Smoke Shop as of the date of the violation.

Pursuant to Title 21, United States Code, Section

881(a)(7).

A TRUE BILL:

FOREPERSON

JAMES R. ALLISON

Interim United States Attorney

BY: WILLIAM WELCH

Assistant U.S. Attorney

By: KATHLEEN M. TAFOYA

Assistant U.S. Attorney

DATE: July 20, 1993

DEFENDANT:

JAMES B. JANUS

ADDRESS:

7050 W. 8th Place

Lakewood, Colorado

OFFENSE:

Count 1

21 U.S.C. §85(a)(1)

18 U.S.C. §2

Use of Postal Service or other conveyance to

sell drug paraphernalia

Counts 2 and 3

21 U.S.C. §863(a)(1)

18 U.S.C. §2

Sell and offer for sale drug paraphernalia

Counts 4and5 .

18 U.S.C. §545

Received and sold and facilitated the

transportation and sale of merchandise

imported into United States

Counts 6 through 160

18 U.S.C. §§ 1956(a)(1)(A){i) and 2

Conduct and attempt to conduct a financial

transaction affecting interstate and foreign

commerce

Count 161

21 U.S.C. §§ 841(a){1) and (b)(1)(D)

18 U.S.C. §2

Manufacture and aid. abet and cause the

manufacture of a mixture and substance

containing a detectable amount of marihuana

Counts 162 and 163

21 U.S.C. §863(c)

Forfeiture with respect to Counts 2 and 3

Count 164

18 U.S.C. §982

Forfeiture with respect to Counts 6 through

160

Count 165

21 U.S.C. §881(a)X(7)

53a

Forfeiture with respect to Counts 2, 3 and

161

DATE: July 20, 1993

DEFENDANT:

JANUS INDUSTRIES

d/b/a "Acapulco Smoke Shop"

ADDRESS:

3520 Brighton Blvd.

Denver, Colorado

OFFENSE:

Count |

21 U.S.C. §857(a)(1)

18 U.S.C. §2

Use of Postal Service or other conveyance to

sell drug paraphernalia

Counts 2 and 3

21 U.S.C. §863(a)(1)

18 U.S.C. §2

Sell and offer for sale drug paraphernalia

Counts 4 and 5

18 U.S.C. §545

Received and sold and facilitated the

transportation and sale of merchandise

imported into United States

Counts 6 through 160

18 U.S.C. §§ 1956(a)(1)(A)(i) and 2

Conduct and attempt to conduct a financial

transaction affecting interstate and foreign

commerce

Counts 162 and 163

21 U.S.C. §863(c)

54a

Forfeiture with respect to Counts 2 and 3

Count 164

18 U.S.C. §982

Forfeiture with respect to Counts 6 through

160

Count 165

21 U.S.C. §881(a)(7)

Forfeiture with respect to Counts 2, 3 and

161

PENALTY:

Counts 1, 2 and 3

NMT 3 years imprisonment; NMT $250,000 fine

or both; NMT 1 year supervised release;

$50.00 special assessment as to each count

Counts 4 and 5

NMT 5 years imprisonment; NMT $10,000 fine or

both; NMT 3 years supervised release; $50.00

special assessment as to each count

PENALTY:

Counts 1,2 and3 -

NMT 3 years imprisonment, NMT $250,000 fine

or both; NMT 1 year supervised release;

$50.00 special assessment as to each count

Counts 4 5

NMT 5 years imprisonment; NMT $10,000 fine or

both, NMT 3 years supervised release, $50.00

special assessment as to each count

Counts 6 through 160

NMT 20 years imprisonment or NMT $500,00 fine

or twice the value of the property involved

in the transaction, whichever is greater, NMT

5 years supervised release; $50.00 special

assessment as to each count

55a

Count 161

NMT 5 years imprisonment; NMT $250,000 fine

or both; NMT 3 years supervised release;

$50.00 special assessment

AGENT:

Rick Stoffregen

Customs

Kimmi Harris

IRS

AUTHORIZED BY:

KATHLEEN M. TAFOYA & WILLIAM D. WELCH

Assistant U.S. Attorneys

ESTIMATED TIME OF TRIAL:

2 weeks

PRETRIAL RELEASE: Based on current information.

detention of the defendant will

or will not XxX be

pursued.