Pipe dreams shattered 

Vault owner convicted on paraphernalia charge

A Missoula jury convicted David Sil, former owner of The Vault, on federal charges of selling drug paraphernalia Feb. 28. And though The Vault, now closed, operated for nearly a decade without drawing legal scrutiny—and though several similar stores continue to operate unchecked around Missoula and the rest of Montana—the decision promises to send a chill of uncertainty through the state.

The two-day trial before Chief U.S. District Judge Donald Molloy proved an interesting if inconclusive exploration into what constitutes paraphernalia, and in what context. Though Sil’s attorney, Martin Judnich, argued that items can’t fairly be classified as illegal paraphernalia before someone associates them with an illegal substance, U.S. Attorney Josh Van de Wetering convinced the jury that paraphernalia’s criminal status predates any actual use.

The jury, composed of six men and six women, mainly middle-aged with the exception of two UM students, was charged with deciding whether items seized from The Vault were drug paraphernalia and whether Sil had knowingly sold them as such. Federal law defines paraphernalia as “any equipment, product, or material of any kind which is primarily intended or designed for use in manufacturing, compounding, converting, concealing, producing, processing, preparing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance…”

Sil’s trial was the first resulting from a May 2005 statewide Drug Enforcement Agency sting in which DEA agents raided five stores—one each in Missoula, Bozeman, Great Falls, Kalispell and Billings—that sell pipes and other smoking accessories, seizing thousands of dollars of merchandise along the way. Then, in November 2005, the owners were all indicted on felony charges of selling drug paraphernalia, which carries a potential punishment of three years in prison and a $250,000 fine. One defendant, Sue Kerkes of Great Falls, pleaded guilty to the charges Feb. 8, and the Billings case is set for trial March 13. The Bozeman case had been set for trial Feb. 21, but was postponed at the last minute after the government added a second owner to the indictment. Though the jury convicted Sil, a motion to dismiss the case is still pending and Molloy said he will decide the matter after further briefing.

At Sil’s trial, DEA agents, the owner of Missoula’s Bell Pipe and Tobacco Shoppe, a former drug dealer and an employee of The Vault all testified for the government. Missoula Chief Deputy County Attorney Mike Sehestedt, a witness for the defense, testified that local officials agreed nearly a decade ago that the store’s goods weren’t paraphernalia unless and until they’re associated with actual drugs, and so never pursued prosecution of Sil.

Three drug agents discussed their undercover purchases from The Vault—including a digital scale, a glass pipe, a yellow hi-lighter that conceals a pipe inside and a bottle of liquid detoxifying supplement—that led to the raid executed by the Missoula Drug Task Force. Though there were no drugs onsite and all items were unused, they said, the thousands of items seized from the store are similar to paraphernalia they’ve found in numerous drug busts.

In Judnich’s cross-examination of DEA special agent David Zahn, the complexity of trying to pin down the difference between what makes one pipe legal and another illegal emerged. With two pipes displayed before the court on a screen—a traditional, large-bowled wooden pipe and a shorter, small-bowled metal pipe—Judnich pressed Zahn on the difference between the two. Zahn agreed the engineering behind the two pipes was more or less the same except for their differing sizes, but insisted on another difference: How he sees them used on the street. The big pipe, Zahn said, wouldn’t be considered paraphernalia until someone smoked marijuana from it. The same would go for a Coke can or an apple or rolling papers or a syringe; that is, they’re innocent items until used in connection with illicit substances. But The Vault’s pipes, he said, constituted paraphernalia to begin with because of their context and intended use.

Judnich said drug users will turn anything into a tool to get high, and that purveyors of goods shouldn’t be held responsible for what their customers may or may not do with products they purchase.

Van de Wetering, though, said Sil was trying to sham people by feigning ignorance when he knew full well what his products were used for. At The Vault, numerous posted signs stated “All pipes are for tobacco use only”; customers had to sign a statement on their receipts agreeing to use their purchases legally; and Sil made efforts—talking to Sehestedt and sending an unanswered letter of inquiry to the federal government—to ensure that his business was legitimate. Though Judnich described those efforts as genuine, Van de Wetering dismissed them as “tricks” on Sil’s part.

“If David Sil sold light bulbs or Coke cans, they probably would be drug paraphernalia because that’s what they would be intended for,” Van de Wetering said in closing arguments. He said the same about liquid detoxifying supplements seized from The Vault, which are also sold at health food stores: “At GNC, it’s not drug paraphernalia. At The Vault, it is—what else could it possibly be?” he asked.

Sehestedt’s testimony demonstrated the difference between local and federal law enforcement attitudes. As Judnich argued, countless items can be used to ingest drugs, but until that direct link is made they don’t equal paraphernalia. Sehestedt said that’s how Missoula County law enforcement judges the distinction.

“[Pipes] are not paraphernalia per se; obviously if they’re found with drugs or residue then they’re paraphernalia,” Sehestedt said. “It’s the same as with people who sell Zig-Zag [rolling papers]. It’s not a per se offense, even though probably every joint in Missoula gets wrapped in Zig-Zags.”

But the feds’ victory shows that, as is now the case with medical marijuana in Montana, local law enforcement decisions can’t protect locals from being held to different standards at the federal level. And while most of Missoula may not be directly affected by Sil’s conviction, those seeking to discern when and where such trappings transform from legal to illegal just saw the atmosphere get hazier.

jmcquillan@missoulanews.com

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