Spam Kings (24 page)

In the criminal contempt case of
U.S
. v.
Jason
Vale
, defense attorney Jason Vale called his first and only witness:
himself.

After being sworn in that morning of July 17, 2003, the former Laetrile spammer took the
stand and began telling jurors the amazing story of how he had beaten cancer by eating
apricot seeds. Vale started by explaining how, at the age of fifteen, he had felt something
growing in his back.
^[
11
]

Judge John Gleeson of New York's Eastern District Court stopped Vale right there. The
judge instructed the jury that the case before them was not about the benefits or
disadvantages of cancer treatments. What was at issue, he said, was whether Vale had
violated the April 2000 injunction prohibiting him from selling any form of Laetrile, also
known as B
₁₇
.

"It doesn't matter to the charge of criminal contempt whether B
₁₇
is a good thing or a bad thing. A person has to comply with the injunction," said Judge
Gleeson.

Vale cautiously returned to his story. He told about how in 1996 he started selling
apricot seeds and a video called "All About Cancer" over the Internet. And then he
discovered how to send spam.

"I emailed to the whole world. I said the answer to cancer is 'no,' and I kept emailing
out," he told the courtroom. "But then some people who got the spams started to complain.
They forwarded the emails to the F.D.A....There is a whole political group out there that
doesn't like spamming, but I was on a mission. I didn't care. Plus, I learned the technique
of emailing out. It might be annoying to someone to press delete when they get the spamming,
but the answer to cancer was 'no.'"

Vale tried to quickly sum up how he had gotten into his current legal predicament. But
it was hard to condense several years into a neat, coherent story. He rambled on for a few
minutes about the mixed legal advice he had received and about the ambiguity of the law. At
one point he apologized for slurring his words and explained that he had broken his teeth as
a child.

"You are just talking too fast. You sound fine," said the judge.

A week before the trial, Judge Gleeson had tried to persuade Vale, who had no legal
training, not to handle the case "pro se," as his own defense lawyer. In a July 10 hearing,
the judge had told Vale such trials almost always result in convictions.

But Vale had lost faith in the expensive lawyers he had retained earlier in the case, so
he had dismissed them. Vale arranged to have an attorney advise him in the courtroom.
However, Vale's "standby" counsel was not allowed to examine witnesses or make statements to
the jury. Also at the defense table with Vale was a lawyer from the Legal Aid office. Vale
told the judge he was shocked to learn that she hadn't even heard of the federal DSEA
(Dietary Supplement Education Act). How, he wondered, could she possibly be of any
assistance?

Judge Gleeson said that the fact that Vale's Legal Aid counsel wasn't familiar with some
acronym was a "horrible" reason for him to "expose" himself by representing himself. "But,
sir," the judge had said, "if that is your choice, I will let you do it."
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12
]

At the start of the trial, the government began its case with a review of the facts.
Assistant U.S. Attorney Charles Kleinberg told the jury how, after Judge Gleeson had issued
the preliminary injunction against Vale in April 2000, Vale hadn't actually stopped selling
Laetrile.

"He thought he could pull a fast one...in flagrant disregard of the court order,"
Kleinberg told the jury.

Vale had, in fact, stopped spamming for apricot seeds and other Laetrile-related
products. He stuck primarily to mass-emailing ads for other herbal products, such as willow
flower for urination and prostate problems, coral calcium for stronger bones, and noni seed
juice for "cellular rejuvenating enzymes." And the ordering page at Vale's
ChristianBrothers.com web site no longer listed Laetrile products as of May 2000.

But according to Kleinberg, the top of Vale's web page advised visitors to call a
toll-free number "for questions about apricot seeds." When Food and Drug Administration
(FDA) undercover investigators phoned the number to inquire about purchasing Laetrile, they
were informed that Christian Brothers no longer handled such products. Potential customers
were referred instead to a firm named Praise Distributing based in Phoenix, Arizona.

Kleinberg told the courtroom that records on file with the Arizona Secretary of State
showed that Jason Vale was behind Praise Distributing. In December 1999, he had registered
the corporate name Christian Nutriments, listing himself as president. A few months later,
he had changed the company's name to Praise Distributing and listed his grandmother as
president. Digging further, investigators discovered that the address on file for Praise was
simply a mailbox service that forwarded to Vale's home in New York. Records showed that Vale
had paid for the mailbox with his credit card.

In October 2000, Kleinberg revealed, investigators from the FDA and the U.S. Postal
Service decided to crack Vale's shell corporation. Armed with a search warrant, they
conducted a surprise inspection of Vale's Queens, New York, home.

"The agents literally caught the defendant with his hand in the apricot seed jar,"
Kleinberg said to the jury.

In the basement of the house, inspectors found 15,000 Laetrile tablets, enough to treat
one person for 200 years. Plastic tubs in the basement also stored over 100,000 apricot
seeds, a quantity that would last a single person forty-two years. Investigators also found
more than 2,000 vials of injectable B
₁₇
. Other damning evidence
included outgoing packages, all bearing Praise's Arizona return address, as well as invoices
from suppliers addressed to Praise. While searching the basement, FDA agents used a cell
phone to dial Praise's toll-free number. To no one's surprise, a telephone on the desk in
the basement rang when they called.

Armed with the evidence, prosecutors had no trouble convincing Judge Gleeson to make his
preliminary injunction against Christian Brothers permanent. In November 2000, he
permanently banned Vale from directly or indirectly promoting or selling Laetrile.

Kleinberg took a step toward the jury box. "But did the defendant keep his word this
second time around?" he asked, gesturing toward Vale. After a pause, Kleinberg answered his
own question. "Not a chance," he said.

Then Kleinberg explained how Vale, with the help of his family, quickly made plans to
resume selling Laetrile under a new front, Cyto International
. In January 2001, one of Vale's employees phoned Woodland Nut
, the California wholesaler that had supplied Christian Brothers with apricot
seeds. Vale's employee ordered 500 pounds of the seeds on behalf of Cyto, with instructions
for Woodland to ship them to a tire and auto center in Queens. A few days later, once the
order was en route, the employee phoned the trucking company and changed the delivery
address to the camera shop run by Vale's father in Corona, New York.

"As any fan of dime store novels will tell you," said Kleinberg, "you don't change
taxicabs in the middle of a trip unless you want to make sure that you are not being
followed."

According to Kleinberg, Vale used the same trick to order even larger shipments of
apricot seeds in February and March 2001—all in an effort to throw investigators off his
path.

"That, ladies and gentlemen, is a crime. It's called contempt of court," said Kleinberg
as he concluded his opening statement.

When it was Vale's turn, Judge Gleeson provided him with plenty of gentle coaching. But
Vale still had trouble mounting much of a defense. He seemed lost while cross-examining
government witnesses and had no real witnesses of his own. Vale had hoped to get testimony
from a friend who had purchased seeds from him in the past. But the friend failed to show up
at the court to testify, forcing Vale to rest his defense. The one witness he did call to
the stand was a friend from church whom he had spotted in the courtroom. After the surprised
acquaintance was sworn in, Vale struggled to come up with questions and soon abandoned his
intended character witness.

In his closing argument, Vale was clearly unprepared for the verbal challenge. Using an
overhead projector, he attempted to persuade jurors that the language of the court's
injunction was ambiguous. But Vale's own bizarre syntax often stood in his way, such as when
he tried to criticize the government's inspection of his home and its failure to send him a
letter warning that he was in possible violation of the injunction:

Vale wound up his summation with a plea to jurors to "decide justice" and to understand
that he did not "knowingly and willfully" disobey the law.

"I pray you find me innocent so that I can go back and do the things the right way and
continue with my life and not go to jail for fifteen...whatever. Thank you," Vale
concluded.

On the morning of July 21, 2003, as the jury was sequestered to begin the second day of
its deliberations, Kleinberg informed Judge Gleeson and the other counsel of a startling
development. Someone outside the courthouse had been handing out pamphlets claiming that
jurors had a Constitutional right to ignore the government's evidence under a process known
as jury nullification
. The pamphlets implored jurors instead to "vote their conscience."

Judge Gleeson was livid. "Does anybody know anything about this?" he demanded.

Vale immediately piped up. "I didn't do it."

"Do you know who did it?" asked the judge.

"Someone I know did it," Vale admitted. "They handed out First Amendment literature,
your honor. It doesn't say my name on it."

Judge Gleeson glared at Vale. "There's nothing First Amendment about it. It's an
inappropriate attempt to influence a verdict in a criminal case ... if anybody in the
courtroom does that, I'm going to direct the marshals to arrest you on the spot. It's an
outrage," he said.

At a loss about how to handle the unusual situation, the judge decided to query jury
members about whether they had seen the handout. Three jurors admitted they had been given
what appeared to be slightly different copies of the pamphlet. The judge reminded them
individually of their duty to heed the instructions he gave at the start of the trial, and
to decide the facts in accordance with the law.

"It's a bunch of baloney," Judge Gleeson said of the pamphlet to one of the jurors who
had a copy in her handbag. "Can you continue to perform your function as a juror?" he
asked.

"I suppose I can," she replied.

Apparently satisfied with her answer, the judge sent the juror back to the jury room.
Then he turned to Vale's standby counsel.

"Why shouldn't I remand Mr. Vale?" the judge asked.

The attorney replied that he hadn't had an opportunity to gather information about the
incident, and he requested more time before the judge made a decision to take Vale into
custody. Judge Gleeson agreed to give Vale's standby counsel until 5 p.m. that day to
prepare an explanation for what the judge said was "a naked effort to improperly influence a
jury."

But the court never got a chance to hear more about Vale's involvement in the leafleting
effort. At 4 p.m., the foreperson sent the judge a note saying the jury had reached a
verdict. Vale was found guilty on all three counts of criminal contempt.

After the judge dismissed the jury, Vale's attorney requested that Vale be allowed to
remain free pending his sentencing, perhaps under some form of house arrest. In response,
Kleinberg forcefully argued that Vale should be detained.

According to Kleinberg, "the events of today sort of stand alone. They are in a category
beyond anything I've seen. And maybe my experience is limited, but the defendant is
responsible for just total and complete disregard for this court's orders...it makes him
both a flight risk and a danger to the community."

At that point, Vale's attorney tried a new line of argument: his client was beset by
mental problems that affected his conduct during the trial.

"I would be able to come forward with certain psychiatric evidence to show that, in
fact, there may have been some aspects of this that were affected by diminished capacity,"
said the attorney. "There's medical conditions going on here...there's a variety of
conditions that would soften what's going on."

"I can't trust you," said the judge to Vale. "This very case is about contempt. It's
about a refusal, knowingly and willingly, to abide by a court order." With that, the judge
set Vale's sentencing for the third week of October 2003. Then he ordered marshals to take
Vale into custody.

Vale was booked into the Brooklyn Metropolitan Detention Center, the same facility that
held tickling-fetish spammer David D'Amato in 2001. While awaiting his sentencing, Vale was
informed that the court had determined he defrauded the U.S. government by claiming he
qualified for Legal Aid. In September 2003, Vale was ordered to reimburse the government
$31,590 for the costs of his appointed defense attorney.