Exclusion of Dissenting DEA Chemist In Analogue Case Requires New Trial

US v. Galecki: Galecki and Ritchie ran a business (in Florida and Nevada) making “spice,” some of which they shipped to Virginia (hence the prosecution in the Fourth Circuit). The spice included a chemical additive, XLR-11, that (the Government alleged) is similar to the “controlled chemical in marijuana.” They were charged with conspiring to distribute controlled substance analogues (and related offenses) and went to trial, where the district court excluded several pieces of evidence they sought to present. The jury, after noting that it was “at an impasse on the issue of substantial similarity” was given an Allen charge and convicted Galecki and Ritchie on all counts.

In an initial appeal, the Fourth Circuit remanded the case back to the district court for further proceedings regarding the defendants’ proffered testimony from a DEA chemist who dissented from the official agency conclusion that XLR-11 was a marijuana analogue. Specifically, the district court was instructed to determine whether the chemist’s testimony would be material. The district court concluded it would not be, because two other defense witnesses testified to expert conclusions that XLR-11 was not an analogue and therefore the DEA chemist’s testimony would be cumulative.

In a second appeal, the Fourth Circuit reversed the district court’s decision, vacated the defendants’ convictions, and remanded for a new trial. The court concluded that the DEA chemist’s testimony would not be cumulative of the other defense witnesses for two reasons. First, the “insider” perspective of the DEA chemist had its own value, particularly since he was going to testify in opposition to the agency’s official position (and basis for the prosecution). Second, at trial the Government had cross-examined the defense experts to imply they were hired guns, willing to say anything. That line of attack would not be available to the DEA chemist. Given the jury’s difficulty with the issue of substantial similarity, the error of excluding that evidence was not harmless. The court also held that Galecki and Ritchie would be allowed to present some testimony as to their state of mind when they shipped spice to Virginia to prove they lacked the mens rea necessary to be convicted for an analogue offense.