July 6, 2015: Former Roanoke shopkeeper beats designer drugs conviction – Represented by attorney Paul Beers

(Last Updated On: January 24, 2017)

A judge has wiped away the conviction of a former Roanoke shopkeeper who sold designer drugs from his tobacco shops in Roanoke and Vinton about three years ago.

Citing a clarification of the drug control laws by the U.S. Supreme Court last month, the Roanoke federal court recently closed its file on Chol Makuach Dau.

Dau, a native of Sudan, settled in Roanoke with a brother, Dau Dau, and the two men started two stores under the name D.K. Tobacco. Police and prosecutors said the stores carried brightly packaged and cleverly named compounds prepared by underground chemists to resemble cocaine, methamphetamine, Ecstasy and other illegal controlled substances in effect, but skirted drug-control laws because of chemical tinkering. Designer drugs packed a high, but in the early years after their emergence they were not explicitly illegal. Packaged as bath salts, plant food, lady bug attractant and other innocuous items, they were widely available at retail stores in the Roanoke region and elsewhere.

Using out-of-state suppliers not prosecuted in the case, the shops on Jamison Avenue in Roanoke and on Hardy Road in Vinton acquired designer drugs in bulk for resale to the general public, generating large profits quickly, according to prosecutors. In mid-2012, federal lawmakers and regulators comprehensively revised drug control law in a clampdown called the Synthetic Drug Abuse Prevention Act of 2012.

Police arrested the Daus. Dau Dau skipped court and authorities deemed him a fugitive. In September 2014, Chol Dau stood trial alone. Prosecutors had to show only that Dau intended for people to consume the drug-like substances his stores sold and, whether he knew it or not, those substances acted on the central nervous system like a controlled substance. Jurors convicted Dau of dealing designer drugs between late 2011 and fall 2012.

The judge, prosecutor and defense agreed to postpone Dau’s sentencing, however, to await a planned review of the law that criminalized designer drugs. The U.S. Supreme Court agreed in January to clarify conflicting lower court decisions about the state of mind required for a conviction. On June 18, the high court rendered judgment: To violate the law against designer drugs, a seller must know that the substances are tightly controlled by law. That raised the bar on the amount of proof needed for a conviction.

Dau had said in pretrial motions that he didn’t know that the products on his shelves were illegal. As evidence, he cited a warning letter he received from then-U.S. Attorney Timothy Heaphy that called synthetic drugs a public health threat. It added: “You may mistakenly believe the sale of these synthetic substances is legal.”

But Judge Michael Urbanski, who conducted the trial, restricted Dau’s attorney’s ability to fully develop an ignorance defense, according to court papers filed last week by Dau’s attorney, Paul Beers.

In light of the high court expansion of the required mental state for guilt, Dau didn’t receive a fair trial, Beers told the judge last week. Prosecutors conceded that Dau deserved a new trial, but declined to try him a second time “in the interest of justice,” court papers said.

Urbanski declared Dau not guilty in a decision posted Thursday.