Naked City

Tommy Chong with partner Cheech Marin in their 1983 movie Still Smokin'.

A little more than two months after he was busted by federal agents on Feb. 24 as part of Operation Pipe Dreams, the U.S. Department of Justice's drug paraphernalia sting, Tommy Chong appeared in court in western Pennsylvania to plead guilty to selling glass pipes and bongs over the Internet via his California-based company, Nice Dreams Enterprises. Chong, one-half of the legendary comedy duo Cheech and Chong, pled guilty, he told the Chronicle last week, because he is guilty. "Am I saying I did that?" he asked. "Yes, and I'm sorry I did that. Will I do it again? No."

But when Chong returned to court for sentencing -- on Sept. 11, no less, a juxtaposition that made the government's much-hyped bong bust seem even more absurd -- Mary Beth Buchanan, U.S. attorney for Pennsylvania's western district, used Chong's pot-smoking character -- familiar from movies like Up in Smoke and, more recently, a recurring role on Fox's That '70s Show -- as evidence of Chong's "frivolous" attitude toward drug-law enforcement. Chong was then sentenced to nine months in federal prison and ordered to pay a $20,000 fine.

Under a federal law banning paraphernalia sales, the 65-year-old comedian could have faced up to three years in the pen and a $250,000 fine. But the lighter sentence is hardly any consolation to Chong and his supporters. "They used [my character] against me in court. They said it showed my attitude," Chong said. "They're absolutely right. And I've told this to my son and my lawyer: I can take responsibility for breaking the law, but the one thing I won't give up are my convictions" -- including his belief that the government's policies regarding marijuana are draconian. Chong is appealing his sentence.

Back in February, U.S. Attorney General John Ashcroft announced the fruitful culmination of a pair of fed-led undercover drug paraphernalia investigations. After more than a year of work on the two sting ops, code-named Operation Pipe Dreams and Operation Headhunter, investigators indicted more than 50 people on charges of "trafficking in illegal drug paraphernalia," Ashcroft said in a prepared statement. "In all, 45 drug paraphernalia businesses have had their inventories seized, effectively putting them out of business." Flanked by the leaders of the Drug Enforcement Administration and the White House Office of National Drug Control Policy, as well as U.S. Attorney Buchanan, Ashcroft described the scourge of drug paraphernalia. "It is troubling enough for parents to realize that stores with these illegal products may be operating in their neighborhoods," he said. "But it is even more frightening when parents understand that with a click of the mouse, a child's room or college dorm room could become the showroom in which drug paraphernalia merchants can advertise, market, and sell illegal products." Cue the scary music.

Under federal law it is illegal to sell or transport -- via mail or any other "facility of interstate commerce" -- drug paraphernalia, which the U.S. Code defines as products "primarily intended or designed to be used" for ingesting illegal drugs. Traditionally, merchants have had some leeway to sell items that the feds consider "paraphernalia" by marketing them for smoking tobacco or burning incense -- even though the U.S. Supreme Court in 1994 called those uses "contrived." But local law enforcement generally has discretion over whether to make selling pipes and bongs the subject of a criminal investigation or prosecution -- depending on where bong regulation fits within a jurisdiction's law-enforcement priorities.

Both Pennsylvania and Iowa have a history of considering these cases important, which goes a long way to explaining why Operation Pipe Dreams and Operation Headhunter were centered in Buchanan's western Pennsylvania district. "The general word we got from the lawyer we use," Chong said, "was that as long as you don't ship to two states, Pennsylvania and Iowa, you'll be OK." Chong learned after he was arrested that federal investigators tried at least four times over the course of a year to compel his company to sell and send a Chong-autographed pipe to the Keystone State. "The DEA, when I was arrested, they told me that they'd never really made a sale before, that every time they put in a request that we would turn it down -- based on the fact that [Chong Glass doesn't] sell to Pennsylvania," he said. In the end, it was a request from a different return address -- in Beaver Falls, Pa. -- which made it past the scrutiny of a new employee, who unknowingly shipped the glass to federal authorities. Chong's Gardena, Calif., warehouse was raided on Feb. 24; investigators seized the company's inventory and over $103,000 in cash.

Despite this, Chong's lawyer Richard Hirsch didn't argue that the government's case against Chong was based on entrapment. Entrapment "is when you make or coerce someone into [doing] something [by] overbearing their will," he said. "If someone is in the business of marketing, manufacturing, selling, and shipping bongs, that doesn't apply." The government did "coerce the shipping" to net his client, said Hirsch -- but he saw that as "unseemly," rather than illegal. But Austin appellate attorney Keith Hampton, who is also the legislative director for the Texas defense bar, said he would have argued entrapment during Chong's sentencing. "Why did [the federal investigators] have to work so hard to get him to do it? It would have underscored the argument," Hampton said, against imposing a harsh punishment.

Chong may already have the basis for a strong appeal of his sentence, citing his Eighth Amendment protection against cruel and unusual punishment and perhaps his First Amendment rights as well. Two previous Pipe Dreams defendants pled guilty to similar charges; each was sentenced to six months of house arrest. So far, Chong is the only one to get jail time -- which he and his supporters argue is a response to his iconic status and his political beliefs. "They used Up in Smoke as an example of [Chong's] lifetime commitment to ridiculing marijuana laws," said Hirsch. "They are blurring the line between fact and fiction. It's like saying that since Arnold Schwarzenegger plays characters that blow things up, that if he is ever accused of a crime they can use that persona against him," he said. "That it somehow carries over." Hampton agrees that "they can't punish him because of his opinions. There is a long line of Supreme Court cases on this."

While Chong is now working with inner-city kids teaching about the dangers of drug use, and has been asked to act as a spokesman for juvenile drug court operations, those opinions have not changed. "They are legislating against something that grows naturally. Ninety million people smoke pot regularly -- that's a huge culture," Chong said, adding that federal prohibition is "like putting a stop light in the middle of the freeway -- people ignore it because it makes no sense. There is no other purpose for it than to make you break the law and then to punish you for it."