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;
Lloyd Snook, III, SNOOK & HAUGHEY, P.C., Charlottesville,
Virginia, for Appellants.
Matthew Hurt, OFFICE OF THE UNITED STATES ATTORNEY, Newport
News, Virginia, for Appellee.
Christian L. Connell, Norfolk, Virginia, for Appellant
Zachary Terwilliger, United States Attorney, Alexandria,
Virginia, Kevin Hudson, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Newport News, Virginia,
AGEE and FLOYD, Circuit Judges, and DUNCAN, Senior Circuit
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.
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
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). Defendants shipped their product around
the country for sale by various retailers, including one in
Hampton Roads, Virginia, which received a shipment on August
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.
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.
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. The jury then convicted
Defendants of all counts.
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.
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.
their compulsory process rights prior to trial, Defendants
issued a "Touhy request" to the Government
along with a subpoena for Dr. Berrier. 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
[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
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)).
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.
now bring a second appeal. 
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. 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.
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.
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, ...