He’s taking one big hit

This is another pot story, starring Tommy Chong. So it should be funny. Only this time, it’s not.

Not to U.S. Atty. Gen. John Ashcroft, who announced dozens of indictments under “Operation Pipe Dreams” in February. Not to U.S. Attorney for the Western District of Pennsylvania Mary Beth Buchanan, who heads Ashcroft’s advisory committee and turned up in court in Pittsburgh to personally accept Chong’s guilty plea. Not to Asst. U.S. Dist. Atty. Mary Houghton, who prosecuted the case. And definitely not to Tommy Chong, who will be spending the next nine months in federal prison.

On Wednesday, Chong turned himself into the Taft Correctional Institution, near Bakersfield. He had pleaded guilty in May to selling bongs over the Internet through his family company, Nice Dreams Enterprises.

The severity of his sentence has left Chong, his family and friends dazed and convinced that the government prosecuted the wrong man -- the archetypal pothead he played as half of Cheech and Chong on comedy records like 1973’s “Los Cochinos” and in hit movies like 1978’s “Up in Smoke,” or the doped-out hippie he’s played in comedy clubs for the last decade with his wife, Shelby, and his Family Stoned Band, or maybe Leo, the aging, waaaay-out photo lab owner he plays on Fox’s “That ‘70s Show.” All of those Chongs lived for one thing: to acquire and consume superior marijuana.

“It’s unfortunate that the government can’t distinguish between the character I have been playing for years and my real persona,” Chong said in one of several interviews over the last week. “It’s a very helpless feeling. It is a character. I’m mystified. That is why I have no defense.”

His longtime partner, Cheech Marin, who is slated to write a new Cheech and Chong movie with him for New Line, finds the situation absurd.

“I feel like I’m stuck in one of my own movies,” Marin said. “These are the same kinds of simpletons we were fighting when we made [“Up in Smoke”], in terms of a repressive administration. That Tommy Chong is going to prison for this is a total miscarriage of justice. The administration should hang its head in shame.”

Chong’s daughter Robbi, who will produce the new movie, said she thinks sending her father to prison is the government’s way of trying to shut him up.

“He’s a comedian,” she said. “This feels much more political. The only way you would believe it is if it were in a movie -- that my father is now Public Enemy No. 1 of the Justice Department.”

More mature look

His heavy-lidded eyes still give him a mellowed-out vibe, and he still has a subversive sense of humor, but today’s senior citizen Chong, 65, is a meditating, woodworking, charity-giving, inner-city-youth-teaching father of six who has been married to the same woman for more than 30 years. He practices Bikram yoga and hasn’t gotten high since the bust. “I’m on a protest fast,” he said.

He is barely recognizable as the doobie-obsessed goofball of his Cheech and Chong days. Gone is his trademark tangle of hippie hair, replaced by a trim gray beard and hair cut neatly to his shoulders. On Monday, at his last tango lesson in Los Angeles, Chong glided across the floor to the melancholy rhythms of that passionate Argentinian dance, looking more like a cultured intellectual than an icon of the counterculture.

Fiora -- just Fiora -- who has shown Chong’s sculptures and installations at her Ghettogloss gallery in Silver Lake, considers him a talented woodworker and photographer who continues to exercise his First Amendment rights in all his creative endeavors, which is really cool. She dismisses those who say his artwork just looks like bongs.

“Tommy is a really organic guy. I think he is about organic visuals,” she said. “People think his flower vases are something else, but they are flower vases. I don’t run a smoke shop. I run an art gallery.”

But it is easy to see why the public, and the government, are confused about where the character ends and the real Tommy Chong begins. He hasn’t taken a toke since February, he says, but he would if he were in Amsterdam or Canada, where it is legal. A healthy strain of pot humor peppers every conversation. And he still likes to poke fun at the feds.

“On the eve of my jail term, if you had told me Arnold Schwarzenegger would be the next governor of California, I would have said, ‘What are you smoking?’ ” he quipped.

He visited a healer last week and performed four shows at a comedy club in Lansing, Mich., over the weekend. He shopped for prison necessities on Monday and spent the rest of the day in a photo shoot for Vanity Fair. He took his final tango lesson that evening, and chatted with a reporter between dances -- captured on video by his friend Josh Gilbert, who was filming the last free days of Tommy Chong for a documentary.

The court made Chong promise he would not profit financially from his case, said his attorney, Richard Hirsch. That means, probably, not weaving what he calls “the incident” into his comedy act. Still, last weekend in Lansing, Chong said, he couldn’t help it.

“I had to,” he said. “I talked about how I wasn’t supposed to talk about it.”

Whether or not he is still smoking weed, the sensibility of yesteryear lives on. Between favorite old songs like “Up in Smoke” -- with a new verse about terrorists, the World Trade Center and how stoners really care -- a videotape of clips from Chong’s recent shows includes a tragicomic riff on the morning federal agents raided his home.

“I finally got busted,” he said. “I’ve been trying for 30 years.”

Laughter.

“They said, ‘Get out of the way, it’s a raid.’ They had flashlights. I said, ‘What are you looking for, the light switch?’ ”

Laughter.

“The DEA said, ‘Do you have any marijuana in the house?’ I said, ‘Of course. I’m Tommy Chong.’ ”

Laughter.

“He said, ‘We don’t have pot in the search warrant.’ I said, ‘Let me get this -- you’re the DEA and you aren’t looking for pot?’ ”

Laughter.

“Well, what are you looking for?”

“Glass pipes.”

Bongs for sale

The Web site for Chong Glass (which is preserved on another site called The Memory Hole) offers a colorful array of handblown glass pipes and bongs with whimsical forms and names such as “Tijuana,” “Cheech,” “Big Bamboo” and “Babe.” Each bong, or water pipe, has Chong’s name and face on it. According to a news release from the U.S. attorney’s office, “Bombay” sold for $230 and was described as “too big for me, but you heavy hitters will definitely enjoy.”

While all bongs sold by Chong Glass and Nice Dreams were labeled “For Tobacco Use Only,” a rarely enforced federal statute specifically names bongs as drug paraphernalia, and in 1994 the Supreme Court ruled that those who sell bongs across state lines can be sent to prison. The Justice Department under John Ashcroft has expanded efforts to crack down on such trafficking.

“It is not only the sellers of the drugs themselves who are profiting from the drug trade,” Ashcroft said in prepared remarks announcing the recent indictments. “There is another illegal industry that is integrally linked to the drug trade. It is the drug paraphernalia business -- a multimillion, perhaps billion-dollar, industry that sells illegal products to facilitate and enable the use of various illegal drugs.”

Chong was sentenced in Pittsburgh on Sept. 11 to one count of conspiracy to sell drug paraphernalia. He was arrested after the Drug Enforcement Administration set up a sting operation, ordering bongs and pipes over the Internet and having them shipped to a phony head shop in Beaver Falls, Pa. Undercover law enforcement officers also purchased two Chong bongs at a head shop in Texas, where Chong was making a personal appearance promoting his products. Chong signed the bongs for the officers and autographed a T-shirt of himself smoking a bong. In addition to serving time, he was ordered to pay a $20,000 fine and to forfeit $100,000 from the company’s business account. Chong Glass, in Gardena, is now shuttered.

He wasn’t the only one who was prosecuted. The Justice Department announced similar charges against 55 people, and so far 11 have been sentenced. Their terms range from a year of probation -- including six months of home detention -- to five months in federal prison. None has received a sentence as severe as Chong’s.

What irks some observers is that the law used to convict him is not only obscure but has not been enforced -- at least in California -- for as long as anyone can remember.

“I’ve never heard of this statute,” said Michael Nasatir, a partner of Chong’s attorney who specializes in drug law. “And neither had experienced U.S. attorneys in the narcotics division in this district [which covers Los Angeles]. Not that it hadn’t been prosecuted -- they had never heard of it. I’ve been in this business for 35 years.”

Hirsch is equally at a loss. “It would be like if Arnold [Schwarzenegger] were charged with an assault, and you said, because he beats people up in ‘Terminator’ movies, he is guilty. It’s like saying someone’s screen persona is the equivalent of what they do in their private life.”

Houghton, the prosecutor, dismisses such interpretations.

“His character did not commit the crime,” she said. “That is him as a person, deciding to commit those acts. That wasn’t part of a script. What he did do is go across the country talking on the radio and signing autographs to promote the sale of his bongs. He used his fame to promote items of drug paraphernalia to children and college students. You could buy your bong and Tommy Chong would be there to sign it. His likeness was on all the bongs.”

She also denies that Chong was targeted because he’s a celebrity.

The maximum sentence possible in the Operation Pipe Dreams cases is three years in prison and $250,000 in fines. Houghton said Chong did not provide information that could assist in further investigations, but he accepted responsibility and exhibited a “certain amount of contrition.”

“His sentence was within the guideline range,” she said. “That judge may give another national distributor the same sentence.”

During sentencing, however, Houghton filed papers with the court that cited Chong’s movie career as one factor in pushing for harsher punishment.

“The defendant has become wealthy throughout his entertainment career through glamorizing the illegal distribution and use of marijuana,” she wrote. “Feature films that he made with his longtime partner Cheech Marin, such as ‘Up in Smoke,’ trivialize law enforcement efforts to combat drug trafficking and use.”

Finding sympathy

Chong’s predicament has won the sympathies of both diehard potheads and law-abiding citizens. The National Organization for the Reform of Marijuana Laws (NORML) started a Free Tommy Chong campaign. The Los Angeles Times ran an editorial calling Ashcroft’s “crusade” a “misuse of resources” when “measured against the war on terror.” On the eve of his prison term, Chong himself seemed resigned, accepting. He was headed to Taft with gray sweats, sneakers sans logos and a bit of cash. His family will mail him his guitar and a stack of spiritual books. A family friend said he has been practicing the tango in small spaces, so he can dance alone in his cell. He said he plans to mug for the security cameras.

“It looks like I will be out by spring,” Chong said. “I’m a movie guy, so I just tell myself I’m going ‘on location.’ ”