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United States v. Galecki

United States Court of Appeals, Fourth Circuit

July 29, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
BENJAMIN GALECKI, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
CHARLES BURTON RITCHIE, Defendant-Appellant.

          Argued: March 19, 2019

          Appeals from the United States District Court for the Eastern District of Virginia, at Newport News. Raymond A. Jackson, District Judge. (4:15-cr-00018-RAJ-LRL-1; 4:15-cr-00018-RAJ-LRL-2).

         ARGUED:

          J. Lloyd Snook, III, SNOOK & HAUGHEY, P.C., Charlottesville, Virginia, for Appellants.

          Eric Matthew Hurt, OFFICE OF THE UNITED STATES ATTORNEY, Newport News, Virginia, for Appellee.

         ON BRIEF:

          Christian L. Connell, Norfolk, Virginia, for Appellant Benjamin Galecki.

          G. Zachary Terwilliger, United States Attorney, Alexandria, Virginia, Kevin Hudson, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Newport News, Virginia, for Appellee.

          Before AGEE and FLOYD, Circuit Judges, and DUNCAN, Senior Circuit Judge.

          Agee, Circuit Judge.

         A federal jury convicted Benjamin Galecki and Charles Burton Ritchie ("Defendants") of charges related to a conspiracy to distribute controlled substance analogues. Defendants then appealed to this Court for the first time, challenging several of the trial court's rulings, including the failure to compel a Drug Enforcement Administration (DEA) chemist to testify on their behalf, the exclusion of certain evidence, and the formulation of a jury instruction. In that appeal, we upheld the jury instruction, but vacated Defendants' convictions and remanded the case for the district court to determine whether the DEA chemist's testimony was material to their case. United States v. Ritchie, 734 Fed.Appx. 876 (4th Cir. 2018) (Ritchie II). On remand, the district court held the chemist's testimony was not material and declined to compel his presence at trial. United States v. Ritchie, No. 4:15-cr-18, 2018 WL 4693811 (E.D. Va. Sept. 28, 2018) (Ritchie III). Defendants now appeal that decision and renew several other evidentiary challenges that we declined to address in the prior appeal. As discussed below, we affirm in part, reverse in part, vacate Defendants' convictions, and remand for a new trial.

         I.

         A.

         Federal law prohibits the distribution of a controlled substance analogue. See 21 U.S.C. §§ 813, 841(a)(1). The Analogue Act defines "controlled substance analogue" as a substance-

(i) the chemical structure of which is substantially similar to the chemical structure of a controlled substance in schedule I or II;
(ii) which has a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance in schedule I or II; or
(iii) with respect to a particular person, which such person represents or intends to have a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance in schedule I or II.

21 U.S.C. § 802(32)(A). Because an Analogue Act conviction requires proof of a defendant's knowledge and intent, that is, his mens rea, the Government must show that he knew either that the substance at issue is a controlled substance or that it is "substantially similar" to a controlled substance in both chemical structure and physiological effects. See id. This Court has explained that a person has violated the Analogue Act if he

(1)distributed a substance that had the chemical structure of an analogue and the actual, intended, or claimed physiological effects of an analogue;
(2) intended that the substance be used for human consumption; and (3) knew either the legal status of the substance, or the chemical structure and physiological effects of that substance.

United States v. McFadden, 823 F.3d 217, 223 (4th Cir. 2016).

         B.

         From 2010 to 2013, Defendants operated Zencense Incenseworks, LLC, which had facilities in Pensacola, Florida, and Las Vegas, Nevada. Zencense manufactured and sold a substance commonly called "spice," which contained a mix of crushed leaves and chemical additives. Consumers would generally smoke the spice, but Defendants packaged the product as "incense" and labeled it "Not for human consumption." J.A. 633. In late March or early April 2012, Defendants began using the chemical additives XLR-11 and UR-144 in their manufactured spice. These additives were not on the controlled substances drug schedule during the time period of the alleged conspiracy (February 8, 2012 to April 30, 2013).[1] Defendants shipped their product around the country for sale by various retailers, including one in Hampton Roads, Virginia, which received a shipment on August 9, 2012.[2]

         The Government had begun investigating Zencense's operations because it suspected Defendants' "incense" was actually synthetic marijuana, i.e., a substance "designed and intended to have an effect similar to controlled substances" (marijuana) when smoked. J.A. 110. In the Government's view, this physiological effect, coupled with the chemical similarity of the additive XLR-11 to the controlled chemical in marijuana, JWH-018, makes Defendants' spice a controlled substance analogue within the meaning of 21 U.S.C. § 802(32)(A). On that basis, the Government charged Defendants with conspiring to distribute controlled substances and controlled substance analogues, in violation of 21 U.S.C. §§ 846, 813; using a communication facility to promote unlawful activity, in violation of 21 U.S.C. § 843(b) and 18 U.S.C. § 2; using a facility in interstate commerce to promote unlawful activity, in violation of 18 U.S.C. §§ 1952(a)(3), 2; and distributing controlled substances and controlled substance analogues, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) and 18 U.S.C. § 2.

         At Defendants' joint trial, the Government had to prove a scientific element as to the spice and a mens rea element as to each Defendant. To establish the scientific element, the Government had to show that XLR-11 in the spice had properties "substantially similar" to the properties of JWH-018 in marijuana. See 21 U.S.C. § 802(32)(A). And to establish the mens rea element, the Government had to satisfy one of two methods of proof: either that Defendants knew XLR-11 was a controlled substance analogue or that they knew the "chemical structure and physiological effects" of XLR-11 were substantially similar to those of JWH-018. See McFadden, 823 F.3d at 223. The Government proceeded under the second method of proof and attempted to "establish that 'the defendant knew the specific analogue he was dealing with, even if he did not know its legal status as an analogue.'" Id. (quoting McFadden v. United States, 135 S.Ct. 2298, 2305 (2015)). "Under this second method of proof, knowledge of the substance's chemical structure and physiological effects is sufficient to support a conviction." Id. Defendants challenged both the scientific and mens rea elements of the Government's case, contending XLR-11 is not chemically similar to JWH-018 and asserting they lacked knowledge of any similarity between the structures or physiological effects of the two chemicals.

         Defendants' first trial resulted in a hung jury on each count. During a second trial, the jury indicated it was at an impasse on the issue of substantial similarity, and the district court issued an Allen charge.[3] The jury then convicted Defendants of all counts.

         C.

         Defendants appealed, challenging a number of the trial court's rulings. Our opinion addressed only two issues: the court's refusal to compel DEA chemist Dr. Arthur Berrier to testify for Defendants and its formulation of a mens rea jury instruction. See Ritchie II, 734 Fed.Appx. at 878-81.

         Defendants framed Dr. Berrier's exclusion from trial as a Sixth Amendment compulsory process violation. See id. at 878-79. Under the Sixth Amendment, a criminal defendant "enjoy[s] the right . . . to have compulsory process for obtaining witnesses in his favor." U.S. Const. amend. VI. Though "not absolute," United States v. Prince-Oyibo, 320 F.3d 494, 501 (4th Cir. 2003), this right is violated when a defendant is "arbitrarily deprived of testimony that would have been relevant and material, and vital to the defense," United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982) (internal quotation marks, alterations, and emphases omitted). To establish a Sixth Amendment violation, a criminal defendant "must at least make some plausible showing of how [the excluded] testimony would have been both material and favorable to his defense." Id.

         Exercising their compulsory process rights prior to trial, Defendants issued a "Touhy request"[4] to the Government along with a subpoena for Dr. Berrier.[5] The Government denied the Touhy request, claiming Dr. Berrier's opinion formed in the course of his employment with the DEA was covered by the Government's deliberative process privilege. See Dep't of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8 (2001) (noting the deliberative process privilege covers written "opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated" (internal quotation marks omitted)). The district court agreed with the Government and quashed the subpoena, thereby rejecting Defendants' compulsory process arguments. When Defendants challenged the district court's privilege ruling on appeal, we held that the Government had waived its privilege as to Dr. Berrier's XLR-11 opinion because he had offered it in other cases and made it publicly available online. Ritchie II, 734 Fed.Appx. at 879. But we then noted that

[t]he absence of a privilege does not end the inquiry, however, because the Defendants' compulsory process right extends only to "favorable" and "material" witnesses and evidence. Dr. Berrier's testimony is clearly favorable to the Defendants, but the district court did not consider materiality, and we leave it to that court to determine in the first instance. If Dr. Berrier's testimony is material and otherwise admissible, the Defendants' Sixth Amendment rights were violated by his exclusion from the trial.

Id.

         We vacated Defendants' convictions and remanded to the district court the initial determination of whether Dr. Berrier's testimony would be material. Further, we exercised our discretion to address Defendants' challenge to the jury instruction as that issue was "likely to recur" and then affirmed the district court's use of the instruction. Id. (quoting United States ex rel. Drakeford v. Tuomey Healthcare Sys., Inc., 675 F.3d 394, 406 (4th Cir. 2012)).

         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.

         Defendants now bring a second appeal.[6] [7]

         II.

         A.

         To challenge the scientific element of the Government's case-that XLR-11 is substantially similar to JWH-018-Defendants sought to compel the expert testimony of Dr. Berrier, a Senior Research Chemist in the DEA's Office of Forensic Sciences ("OFS"). Dr. Berrier would have opined that XLR-11 and JWH-018 are not substantially similar in chemical structure. While another DEA office, the Drug and Chemical Evaluation Section ("DRE") in the Office of Diversion Control, ultimately classifies controlled substance analogues, it regularly consults the OFS before making its decisions. As an OFS chemist, Dr. Berrier routinely analyzed synthetic substances for the DRE and gave his opinion on their substantial similarity to controlled substances. In the spring of 2012, the DRE asked Dr. Berrier to compare UR-144 to JWH-018.[8] He concluded that they are not substantially similar in chemical structure. But ultimately, after the charged events, the DRE determined that UR-144 and JWH-018 are substantially similar, making UR-144 a controlled substance analogue. The DEA formally added UR-144 and XLR-11 to the controlled substances drug schedule in 2013, after the alleged conspiracy ended.

         Defendants argued that Dr. Berrier's testimony was crucial to their case, as he was a DEA synthetic cannabinoid expert with a dissenting view-a view demonstrating that even highly-trained Government employees disagreed about the substantial similarity of XLR-11 and JWH-018. Indeed, one of the Government's expert witnesses at trial was Dr. Jordan Trecki, a pharmacologist in the DRE section of the DEA who testified about the effects and substantial similarity of XLR-11 to JWH-018. As discussed above, Defendants unsuccessfully sought to compel Dr. Berrier's testimony on their behalf.

         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, ...


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