Last week, the U.S. Court of Appeals for the Fourth Circuit, located in Richmond, Virginia, vacated the convictions against Pensacola natives Burton Ritchie and Ben Galecki on multiple counts related to their distributions of spice.
Judges vacated the convictions because federal government would not allow Dr. Arthur Berrier to testify at the trial. Berrier, an employee of the Drug Enforcement Agency, had previously opined that UR-144, the active ingredient in Ritchie and Galecki’s spice was not analogue under the Controlled Substance Analogue Enforcement Act.
The government had claimed deliberative process privilege, which the lower court upheld. The Appellate Court found the government had waived any reliance on that privilege.
Ritchie and Galecki operated Zencense Incenseworks, LLC. Its distribution network reached across most of the U.S., including the Hampton Roads region of Virginia. Zecense, which later changed its name to ZenBio, experimented with several formulas and finally settled on XLR-11 and UR-144. In July 2012, DEA agents raided the company’s operations in Las Vegas.
The government alleged that XLR-11 and UR-144 were analogues of JWH-018, a Schedule I controlled substance. At trial, Ritchie and Galecki presented testimony their ingredients weren’t analogues to JWH-018, and that they didn’t know the substances were similar in chemical structure. The jury convicted them on all counts.
In the appeal, the defendants showed that Dr. Berrier’s opinion on UR-144 was freely available online and, therefore, should not have been considered privileged. He should have been allowed to testify at their trial.
The court ruled: “Because the district court erred in concluding that the deliberative process privilege shielded Dr. Berrier from testifying, we vacate the Defendents’ convictions and remand the cast for further proceedings consistent with this opinion.”
