Legal Issues

by Tim Cushing


Filed Under:
dea, evidence, government, privilege



Court Says Gov't Can't Claim Testimony That Undermines Its Criminal Case Is 'Privileged' When It's Used It In Other Cases

from the decks-undergo-destacking dept

The government rarely likes to play fair in court. This is why we have the (repeatedly-violated) Brady rule (which forces the production of exonerative evidence) and other precedential decisions to guide the government towards treating defendants the way the Constitution wants them to be treated, rather than the way the government would prefer to treat them.

In a case involving drug charges predicated on the distribution of synthetic marijuana, the government tried to keep testimony of a DEA chemist out of the hands of two charged defendants. The Fourth Circuit Court of Appeals says this isn't OK in a decision [PDF] that gets very weedy (why yes, pun intended) pretty quickly. That's the nature of synthetics -- and the nature of DEA determinations on controlled substances analogues.

The two proprietors of Zencense -- Charles Ritchie and Benjamin Galecki -- decided to manufacture and distribute their own blend of spice, using XLR-11 and UR-144 as active ingredients. The DEA raided Zencense's Las Vegas production facility, charging the pair with conspiracy to distribute controlled substance analogues.

The government alleges both synthetics are analogues of JWH-018, which is a controlled substance. Unfortunately, its own chemist disagrees with this assertion.

The DEA’s determination that a substance is an analogue is made by its Drug and Chemical Evaluation Section (DRE). During the process of determining if UR-144 is an analogue, the DRE solicited the views of Dr. Arthur Berrier, a Senior Research Chemist with the DEA’s Office of Forensic Sciences. Dr. Berrier concluded that UR-144 is not substantially similar in chemical structure to JWH-018, which would mean that it is not outlawed by the Analogue Act.

This means the distribution was only half as illegal as the government asserts. Or, possibly, not illegal at all, as this footnote portrays the government's assertions.

All of the expert testimony in this case agreed that XLR-11 and UR-144 are indistinguishable, and the Government treats them as the same substance.

If they're similar, and UR-144 isn't "substantially similar" to controlled substance JWH-018, the government doesn't have much of case left to prosecute. The charges hinge on the defendants' knowledge that the substances they manufactured were illegal analogues. But the DEA's chemist is on record stating that the substance Zencense emulated isn't actually a controlled substance.

Upon learning this, the defendants sought to obtain the chemist's testimony. The government refused their request.

The Government opposed the motion to compel, arguing that “some of the information sought [was] part of the deliberative process and is therefore privileged.” (J.A. 673). The district court denied the Defendants’ motion, “find[ing] that the denial of this Touhy request is appropriate as it would violate the Deliberative Process Privilege of the Drug Enforcement Agency to grant the subpoena”.

As the court points out, this is a ridiculous position for the government to take. While the government made a proper claim of privilege, there's nothing privileged about the DEA chemist's assertions.

Applying this framework, we readily conclude that the district court erred in concluding that the deliberative process privilege applies because, to the extent the privilege covers Dr. Berrier, the Government has waived any reliance on it. The Government has, by its own admission, provided Dr. Berrier’s opinion as Brady material in criminal cases involving XLR-11 and UR-144. See United States v. $177,844.68 in U.S. Currency, 2015 WL 4227948, *3 (D. Nev. 2015) (cataloguing cases). Moreover, Dr. Berrier recently testified in open court pursuant to a motion to compel in an analogue case involving the distribution of UR-144. See United States v. Broombaugh, 2017 WL 2734636 (D. Kan. 2017) (ordering the unsealing of Dr. Berrier’s testimony). Finally, Dr. Berrier’s opinion that UR-144 is not an analogue of JWH-018 is freely available online. See Federal Judicial Center, Litigating Synthetic Drug Cases, http://fln.fd.org/files/training/April%202015%20Handout.pdf, pp. 37-41 (last visited May 16, 2018). Therefore, Dr. Berrier’s opinion was accessible to everyone but the jurors in this case.

As the court notes, compelling testimony is limited to that which is "favorable" and "material" to the defense. Clearly, Dr. Berrier's testimony is favorable, as it shows the analogue produced by the defendants was not identical to a controlled substance. As for the materiality of the testimony, the appeals court will let the district court decide. It seems extremely material, as the government's case rests on its accusations of manufacture of a controlled substance analogue, which is at odds with its own expert's assertions.

Unfortunately, this isn't the end of the road for the defendants. Having already faced two trials (one mistrial, one resolved with an Allen charge delivered to a deadlocked jury), the convictions are vacated and the government now has a chance to potentially put the defendants on trial one more time. Even when the government apparently has it wrong, it's still given multiple chances to obtain a conviction.


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  • icon
    nerd bert (profile), 4 Jun 2018 @ 11:13am

    A third bite at the apple?

    Seems to me that something should be done to recompense the defendants after this many trials. Right or wrong, the government definitely has a massive funding advantage that can only magnify itself over time.

    reply to this | link to this | view in chronology ]

    • identicon
      WC_TN, 6 Jun 2018 @ 3:03am

      Re: A third bite at the apple?

      I agree 100% with that. The government should have one shot and one shot only. If they can't prove their case the first time, too bad. They should not be able to keep retrying and retrying the same case over and over again.

      I'll go a step further. They shouldn't be able to tack on every L.I.O. (lesser included offense) in the book. That is the old throw everything I can and hope SOMETHING sticks. Either the D.A. can prove the main charge or he can't. No more "shotgun" tactics.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 4 Jun 2018 @ 11:35am

    The the thing not being said is here is that all government action is performed by people not some autonomous machine.

    People are crooked and dishonest both as government employees and non-government employees.

    The problem thus simplifies, as if this is simple, is how to make people have a higher respect for law and other people.

    Given the current structure of society where large segments are actively attempting to destroy integrity that is a daunting task.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 4 Jun 2018 @ 11:51am

    So even after it has been scientifically shown that there is no case against the defendants as they committed no crime, the government is still pursuing this? If nothing else, this case illustrates how the government takes an "us versus them" view of the world and seeks to punish anyone it can for anything it can, truth be damned.

    And they wonder why the public is disillusioned with our government.

    reply to this | link to this | view in chronology ]

    • identicon
      WC_TN, 6 Jun 2018 @ 3:07am

      Re:

      It also shows personal animus on the part of the D.A. This so clearly illustrates that D.A.s are the scum of the earth and more richly deserve a prison cell than most of the criminals they prosecute.

      The D.A.s of today only care about racking up a high conviction rate and damn the human cost. They take it as a slap to the face when they lose a case or are proven crooked during a new trial granted on appeal or especially when an appellate judge throws charges out altogether with prejudice. Even when the wrongfully accused has DNA evidence, the D.A. will turn on its reliability and say "Well, lack of DNA doesn't mean he or she wasn't present!" They don't show that kind of doubt when the DNA favors THEIR case!!

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 4 Jun 2018 @ 12:03pm

    "similar to" ...

    I don't understand how this "controlled substance analogue" thing works -- even when it does work. Should we go by chemical composition, molecular structure, human pharmacological effects, all of those things combined, or something else entirely? For instance, to a layman, it might seem that carbon dioxide and carbon monoxide, at least molecularly, are quite similar. But that's obviously not the case at all.

    What if, years from now, opinions in the scientific community change regarding a substance's chemistry and other properties?

    Consider, for instance, trans fats. For decades, trans fatty acids were considered by chemists to be the same as unsaturated fats, and margarine and shortening rich in trans fats were universally considered to be a much healthier alternative to butter and lard. (And who are we peons to argue with scientists?)

    But then years later the scientific community comes back and says, "oops, we were wrong" as it turns out that the very people who trusted "science" and went out of their way trying to eat healthy foods were actually killing themselves.

    Similar examples are endless, and perhaps that's a reason why so many people do not trust the word of scientists. By their own admission, they've been wrong many times before, and they will likely be wrong many times again. This "controlled substance analogue" legal theory is not something that can be tested and verified, like DNA evidence. To have a law apparently based on nothing but pure opinion (of a privileged class of people, no less) seems to violate the basic concepts of our legal structure and justice system.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 4 Jun 2018 @ 12:46pm

      Re: "similar to" ...

      But then years later the scientific community comes back and says, "oops, we were wrong" as it turns out that the very people who trusted "science" and went out of their way trying to eat healthy foods were actually killing themselves.

      And yet that is the very definition of science: We learned we were wrong and updated the interpretation of data with new information. Science, by definition, is not a conclusion machine. It is "the world as we know it now". Tomorrow we may know it differently.

      All of that is a more solid foundation than belief or opinion on which to base anything, legal theory or otherwise.

      reply to this | link to this | view in chronology ]

      • icon
        JoeCool (profile), 4 Jun 2018 @ 1:51pm

        Re: Re: "similar to" ...

        You're lucky when they DO change their conclusions and admit they were wrong. These days, they'll often double-down on the stupid instead.

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 4 Jun 2018 @ 2:16pm

        Re: Re: "similar to" ...

        Then the high probability of science being proven wrong in the future, whether slightly or catastrophically, should be enough reason for people not to automatically trust science, and instead perhaps continue what they're doing regardless of what 'science' insists they should do instead.

        Call it "naturalism" or "organic" living or whatever else, the general belief that food and other things found in nature should whenever possible be chosen over chemical substances created in a laboratory -- even if against the advice of whatever the "scientific" community of the day tells us -- is not an inherently unsound philosophy.

        "Science" has completely changed its mind about the supposed healthiness of trans-fats, the supposed healthiness of infant formula, the supposed safety of using super-absorbent synthetics in tampons, and so many other things that were in reality deadly poisons being pushed by commercial interests masquerading as "healthy" science.

        That's not to say that we should all reject science unequivalently, but just that maybe we should not be so quick to drastically change course in our lives based entirely on the opinion of supposed "experts" who claim to be advising us for our own health and safety. (and yes, I'm a global warming/climate change skeptic although I think that abandoning fossil fuels is a very worthy goal)

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 4 Jun 2018 @ 2:44pm

          Re: Re: Re: "similar to" ...

          I agree with all of that though I am a staunch supporter of all kinds of legitimate science, with the exception of your use of quotes around the word science.

          Nobody should blindly follow anyone's word. Question everything (aka science).

          reply to this | link to this | view in chronology ]

        • icon
          Advocate (profile), 4 Jun 2018 @ 9:04pm

          Re: Re: Re: "similar to" ...

          Even if the results are not fully vetted, trusting science as a Method means that scientific results are always a null hypothesis.

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 6 Jun 2018 @ 7:59am

          Re: Re: Re: "similar to" ...

          Call it "naturalism" or "organic" living or whatever else, the general belief that food and other things found in nature should whenever possible be chosen over chemical substances created in a laboratory -- even if against the advice of whatever the "scientific" community of the day tells us -- is not an inherently unsound philosophy.

          Sure! Go ahead and eat those brightly colored berries over there. Science has proven they're poisonous, but it's a "natural" poison, so I guess you're fine with it!

          reply to this | link to this | view in chronology ]

        • icon
          zboot (profile), 7 Jun 2018 @ 6:49pm

          Re: Re: Re: "similar to" ...

          >Then the high probability of science being proven wrong in the future, whether slightly or catastrophically, should be enough reason for people not to automatically trust science, and instead perhaps continue what they're doing regardless of what 'science' insists they should do instead.

          Umm, you've gone off into the weeds. How have you determined that the probability is high of science in general being proven wrong and science specifically in this case being prove wrong in the future?

          reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 4 Jun 2018 @ 12:37pm

    How is this difficult?

    If the defense isn't allowed access to the testimony of a witness/expert, then the prosecution isn't allowed to use it.

    That should be a really easy decision to make, and even trying to have it both ways should have the judge handing out benchslaps.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 4 Jun 2018 @ 1:09pm

      Re: How is this difficult?

      … then the prosecution isn't allowed to use it.

      The government was not attempting to use Dr. Berrier's testimony.

      Perhaps you misunderstand Brady material?

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 4 Jun 2018 @ 1:17pm

        Re: Re: How is this difficult?

        Ah, good point, got mistaken there a bit. They're relying on other testimony, while refusing to hand over testimony that would undercut their case by another expert.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 4 Jun 2018 @ 1:29pm

          Re: Re: Re: How is this difficult?

          … got mistaken there a bit.

          The “When It's Used It In Other Cases” part of this article's headline appears misleading.

          reply to this | link to this | view in chronology ]


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