Appeals Court Gives Gov't One More Chance To Lock Up Men For Producing An 'Illegal' Drug Its Own Chemist Said Wasn't Illegal

from the keep-your-chins-up,-g-men! dept

How many chances does the government get to try to convict a couple of people for selling a drug analogue the DEA's own chemist said wasn't "substantially similar" to any controlled substance? Apparently the government will get at least one more swing at the plate, having batted .500 during its first two tries.

In 2012, the DEA raided Zencense, a business owned by Charles Ritchie and Benjamin Galecki. They were charged with conspiracy to distribute controlled substance analogues. The "spice" made by Zencense used XLR-11 and UR-144 as active ingredients. The government claimed these were analogues of JWH-018, which is a controlled substance.

The defendants argued that their spice was not an analogue of a controlled substance. If true, this sunk the government's case, because the conspiracy charges relied on the "knowing" distribution of illegal drug analogues.

The government claimed XLR-11 and UR-144 were pretty much the same thing and pretty much identical to JWH-018. This testimony was undercut by one of the DEA's own chemists, who had stated in other prosecutions that UR-144 was not an analogue of JWH-018. Not only that, but the chemist's professional opinion on this subject was freely available online, as part of a handout on litigating synthetic drug cases.

The defendants hoped to have the chemist testify on the differences between these substances, which would likely have resulted in them being found innocent of the conspiracy charges. The trial court denied this request, resulting in the defendants' first appeal.

On appeal, the Fourth Circuit sided with the defendants, finding the government could not claim the chemist's testimony was "privileged" -- not when it had relied on it in other prosecutions. It sent the case back down to the district court to reconsider the admissibility of this exculpatory evidence.

The case is now back in the Fourth Circuit Appeals Court, thanks to the lower court deciding once again that this testimony isn't relevant and would have had no effect on the outcome of the case. That the outcome was one mistrial and one hung jury (one that was un-hung with an Allen charge) seems to have escaped the attention of the court.

The Appeals Court [PDF] wants to make sure this doesn't happen again. The lower court looked at the testimony that directly contradicted the assertions made by the government and shrugged.

On remand, the district court concluded that Dr. Berrier’s testimony was not material to Defendants’ case because it would have been “merely cumulative” to testimony from Defendants’ two other expert chemists. Ritchie III, 2018 WL 4693811, at *4. The district court determined that those chemists used the same methods and came to the same conclusion as Dr. Berrier, and that his “position at the DEA would not provide any new relevant information” to the jury. Id. The court accordingly held that Dr. Berrier’s exclusion from the trial did not violate Defendants’ Sixth Amendment compulsory process rights.

But it wouldn't be merely "cumulative." Yes, the defendants brought in their own expert witnesses but their opinions were pretty much nullified by statements the government's lawyers made during cross-examination.

Barred from questioning Dr. Berrier, Defendants relied on the expert testimony of two chemistry professors, Drs. Croatt and Dudley, who gave the same opinion that Dr. Berrier would have given—an opinion that contradicted Dr. Trecki’s. During cross-examination, the Government questioned Defendants’ “hired guns” about the compensation they received for testifying. In convicting Defendants, the jury ultimately rejected Drs. Croatt and Dudley’s expert opinion about XLR-11 and JWH-018.

The lower court claimed testimony from a DEA chemist about the non-similarity of the contested substances "would not have altered the trial's outcome." Nothing could be further from the truth, the Appeals Court explains.

[W]e disagree with the district court’s analysis of the “not merely cumulative” component, as we conclude that Dr. Berrier’s testimony was qualitatively different from the testimony of the other defense witnesses. In stark contrast to Drs. Croatt and Dudley, Dr. Berrier was not paid outside his DEA employment to form his opinion about XLR11’s chemical similarity to JWH-018. Nor would Defendants have paid him to testify at trial. Consequently, the Government could not have impeached Dr. Berrier in front of the jury for having a pecuniary motive for testifying. Dr. Berrier’s inability to be impeached on that ground made his testimony unique and particularly relevant, not cumulative.

[...]

Also unlike Drs. Croatt and Dudley, Dr. Berrier could have rebutted the testimony of Dr. Trecki, the Government’s DEA expert, with his own knowledge of the DEA’s processes and analyses. His expert testimony, which diverged from Dr. Trecki’s, could have shown the jury that the DEA’s own scientists could not agree on the substantial similarity of the chemicals at issue. Drs. Croatt and Dudley could not have provided that type of rebuttal testimony.

The testimony is material, not cumulative. And the error in disallowing it was far from "harmless." As the Appeals Court points out, the DEA expert's testimony would have introduced a significant amount of reasonable doubt -- enough to turn a hung jury into an exoneration.

Unfortunately, this means the defendants have to go through all of this again. Their convictions have been vacated but the government will get a third chance to put them behind bars. The government is failing forward and it's facing people who don't have the luxury of taxpayer-funded, inexhaustible resources.

Filed Under: 4th circuit, benjamin galecki, charles ritchie, dea, doj, expert witness, synthetic drugs