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.

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

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Sharur says:

Re: Re:

I disagree. Appellate courts don’t have such power, nor should they. Allowing them to "self-select" would simply create an echo chamber; wonderful when the higher court is right, but equally horrible when the courts get it wrong.

(See Dred Scott v. Sandford, Plessy v. Ferguson or Korematsu v. United States, for a few hopefully uncontroversial examples of the higher courts "getting it wrong").

Rather, this is a case where Congress should impeach such a judge and remove them from office, and not "be nice". We have a system in place; we just need proper sections to act appropriately.

Anonymous Coward says:

why is it that the USA justice agencies are never satisfied until someone, who, as it seems in this case, hasn’t done anything wrong, is locked up for decades with the key thrown away? nothing seems to deter them from doing whatever they need to to convince whoever needs to be that ‘this person is bad and needs to be incarcerated, beaten and raped, for a minimum of 20 years, just because they say so and just because they mustn’t lose face or be questioned! and the USA isn’t a ‘police state’? of course it’s not!!

Paul Brinker (profile) says:

Re: Re:

In this case you have designer drugs that have been found via digging into drug research going back 20-40 years that impact the same chemical pathways that currently illegal drugs impact. However as drugs are made illegal based on chemical composition and not pathway impact there is now quite literally a war between the government trying to make thousands of drug variations illegal.

This means that Judges treat one off drugs as something that is probably illegal but they have not gotten it to the lab to make it illegal yet. I cant say this should be the way things are done but it’s the truth of the situation we live in today.

To make things more fun here is a really detailed report on the very drug in question:

AC720 (profile) says:

Re: Re:

The justice system in the US, at all levels, operates on a principle that you have done something illegal. You have been bad. You broke a law. And it’s the job of justice to find out what you did, charge, punish and convict. Once they get as far as those steps, they don’t and can’t admit they were wrong.

This whole thing about "innocent until proven guilty" is basically BS. All they do is lower the bar of proof so low, you are guilty by default.

We just had a case where a football player was stopped for speeding. A white substance was found on the hood of his car. The driver said it was bird poop. The cops tested it anyway, using one of these "field test kits" which are notorious for coming up with false positives for things like the sugar off donuts, aspirin, food crumbs, vitamins, powdered artificial sweeteners, etc. The tests are worthless. And yet these cops, dead set on busting this kid, ran that "bird poop" and wow it came back as a controlled substance. Kid went to jail. His football career ended.

The police chemist came back with a lab test that revealed it was, in fact, bird poop. Just as the driver claimed. But the cops are not happy with this. Their job is to arrest people and fill the jails.

Thanks to the intense media coverage and police body cam footage of the bird poop on the car, looking like bird poop, and the cops being absolute idiots, the kid has gotten his football career back.

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