The father and daughter owners of the Dallas-based Gas Pipe smoke shop retail chain were each sentenced Tuesday to three years in federal prison for mislabeling a synthetic marijuana product they sold known as “spice” that authorities called a deadly poison.

Gerald “Jerry” Shults, 73, and Amy Herrig, 44, were found guilty in October 2018 of one felony count each -- conspiracy to defraud the U.S. -- for misbranding their spice products.

But a jury acquitted them during the trial of the more serious drug-trafficking charges, putting at risk future federal prosecutions of spice cases despite the product's recognized lethality. The Gas Pipe case exposed a major loophole in federal drug laws, which Chief District Judge Barbara Lynn acknowledged on Tuesday, saying the current regulations are "ineffective" at preventing the sale of such products.

As the Gas Pipe case showed, spice dealers can stay one step ahead of the DEA and avoid legal consequences as long as they continue to make small molecular changes to their products -- enough that they are not considered “substantially similar” to banned substances.

And because that determination is so subjective, a conviction or acquittal can depend on the testimony of dueling chemists, leaving juries to sort it out. The result is a sort of cat and mouse game with federal authorities.

Shults and Herrig ran afoul with federal law by mislabeling their products as bath salts and potpourri when they knew people would smoke them to get high. The couple recently settled a parallel civil forfeiture case, agreeing to pay the government roughly $13 million.

Shults and Herrig had been facing up to life in prison prior to their trial.

Their attorneys sought probation on Tuesday, noting that lengthy prison terms could prove to be life sentences for their clients. Shults recently suffered a stroke, and Herrig is recovering from a bout with Stage III breast cancer, the lawyers said.

Lynn took the rare step of staggering their sentences, with Shults serving his first, beginning Nov. 5, so they can attend to their health problems and keep their stores open, thus saving the jobs of about 150 people.

The Dallas-Fort Worth area has several Gas Pipe stores that continue to operate.

Chemistry lessons

Assistant U.S. Attorney Chad Meacham sought the statutory maximum of five years during the two-day sentencing hearing. He introduced testimony from a Parkland Memorial Hospital ER doctor who said the defendants’ products created an army of walking dead in Dallas.

“It was really like a zombie apocalypse,” said Dr. Stacey Hail, who also is a UT Southwestern associate professor, during the first day of the sentencing on Aug 28.

Meacham unsuccessfully tried to have Lynn consider uncharged conduct against the Gas Pipe owners as “relevant conduct” in an attempt to enhance their punishment.

“The drugs they sold caused real harm,” he told the judge.

Relevant conduct is a controversial provision of federal sentencing law that allows prosecutors to seek tougher sentences by introducing evidence of a crime the defendant was never charged with. A judge alone decides if the person is guilty based upon a preponderance of the evidence. Critics call it an unconstitutional short-cut.

“Now they [prosecutors] want to hold them accountable for something they never had the opportunity to defend themselves against,” said George Milner, an attorney for Shults.

Meacham argued that one of the Gas Pipe’s products contained a substance called a-PVT, which he said was “substantially similar” in molecular makeup to an illegal drug - and therefore also illegal under the federal drug “analogue” law.

But the defense challenged the science behind that assertion. Both sides put on their own chemists for expert testimony on the nature of the spice product in question.

The government’s chemist said Tuesday that a-PVT was substantially similar to a-PVP, the banned substance. The defense’s two chemists then took the witness stand and said the opposite.

Undercover officers purchased synthetic marijuana several times in Novemeber 2013 at The Gas Pipe, at 1407 N. Collins St. in Arlington. The owners were acquitted of drug trafficking charges but are going to prison for three years for misbranding their products. (David Woo / Staff Photographer)

As a result, Lynn was treated to what sounded like an advanced chemistry course, with unpronounceable details of molecular weights and volumes, differences between carbon and sulfur atoms, and hydrogen bond acceptors.

The problem is, what is substantially similar chemically is not scientifically measurable and thus highly subjective. Tuesday’s testimony mirrored much of the trial evidence, which focused largely on the federal law banning drug analogues.

The Gas Pipe's attorneys argued during the trial that the laws banning analogues are so vague, not even chemists can agree on what is and what is not prohibited.

Jurors in the Gas Pipe case were left to “sort out complex chemistry,” Lynn said, and ultimately found reasonable doubt, acquitting the defendants on all drug analogue counts.

During the sentencing hearing, Lynn also declined to rule on evidence from dueling chemists -- even with a lower burden of proof. She said Tuesday that if the government thought it could prove that Shults and Herrig broke the law by selling a product with a-PVT, it should have charged them with it rather than try to hold it against them at sentencing.

Apologies

Defense attorneys argued that their clients were not aware that any of their products harmed anyone.

Herrig tearfully apologized for her actions, saying her business decisions harmed a community.

“I am a caring person but I went off track in life,” she told Lynn.

She said she was “ashamed” of her involvement in something so “disgraceful,” and has started helping the homeless, whose problems with addiction she now understands.

Synthetic marijuana products like spice and K2 have resulted in mass overdoses across the U.S. (DEA)

Shults also told Lynn he caused harm.

“I knew people were buying these products to get high,” he said. “And there is no justification for that.”

Lynn noted that some of the defendants’ employees pleaded guilty to the same counts Shults and Herrig were acquitted of at trial, and as a result their workers received longer sentences.

Lynn told them they were focused on making money “at the expense of others.” Their approach to the business, she said, was to “tweak a molecule here or there” in order to “make a lot of money” without regard to public health.

Lynn fined the Gas Pipe and another business entity that ran it $25,000 each during the sentencing hearing.

Dangers

Jordan Trecki, a DEA pharmacologist and spice expert, testified during the first day of the sentencing that spice was nothing like marijuana and produced seizures, strokes, cardiac effects and even death.

He called spice a “severe threat to public safety.”

Hail, who is also board certified in medical toxicology, testified in August that she began to notice spice victims in 2009. The effects of the drug made cocaine intoxication “look like child’s play,” she told Lynn.

It gave users “superhuman strength,” she said, combined with “crazy agitation,” which made for a dangerous mix.

A man lays handcuffed and unresponsive as first responders attend to him at a DART rail stop during rush hour in downtown Dallas. According to police, the man had smoked spice, a synthetic marijuana product known to cause hallucinations and violent behavior. (LM Otero / AP)

Hail said it took up to a dozen police officers to restrain spice victims at Parkland so they could be sedated. Most patients needed repeated injections to calm them down, she said.

One patient strapped to a stretcher stood up and walked around with it still attached to their back, like a turtle, Hail said. She said she also saw an adolescent spice victim in the ER who had a heart attack. The case was so rare, she said, it was written about in medical literature.

The smokeable leafy products, sprayed with chemicals imported mostly from China, were labeled “Not for human consumption.” Spice was marketed as potpourri, incense and bath salts.

The Gas Pipe case was considered one of the nation's largest synthetic marijuana prosecutions. The company had stores across Texas and in New Mexico, and its owners earned about $40 million in profits from selling spice, according to prosecutors.

Most of the other roughly two-dozen defendants in the case pleaded guilty.