The legal saga of film-producers-turned-convicted-drug-dealers Charles Burton Ritchie and Benjamin Galecki is headed for another appeal.
After being convicted and sentenced to decades in prison on the government’s second try last year—the first jury hung the year before—the U.S. Court of Appeals for the Fourth Circuit vacated their convictions. The trial judge wrongly blocked testimony from a DEA chemist that Ritchie and Galecki argued could have swayed the jury, the Fourth Circuit held May 25.
But the appeals court kicked the case back to the judge, Raymond A. Jackson, to decide in the first instance if the witness’s testimony was “material” such that precluding it violated the defendants’ Sixth Amendment rights to compulsory process.
It wasn’t, Jackson ruled Sept. 28 from Newport News, Va., putting the duo in danger of stiff sentences again.
But they’re going to appeal Jackson’s ruling back to the Fourth Circuit, Galecki’s lawyer Christian Connell told Bloomberg Law.
It’s Just the DEA: Judge
The charges stem from Ritchie’s and Galecki’s nationwide distribution of what’s commonly referred to as “spice” or synthetic marijuana. Though the substances they sold weren’t listed by the DEA as controlled at the time, the defendants—who produced some films after they sold the drugs but before they were arrested in 2015—were charged under a law that bars sale of substances “substantially similar” to already illegal ones.
The first jury deadlocked because it couldn’t agree whether the drugs were similar enough. That was a contentious point in the second trial, too.
That’s why the defendants wanted to show the jury all the steps they took to comply with the law. Those steps included testing samples of the chemicals they used in their product—to flag for any illegal drugs—and even asking a DEA agent to inspect their facility.
But Jackson prevented them from mounting that defense to the extent they desired, blocking testimony from the agent as well as a lawyer who advised them.
Ha also stopped them from calling Dr. Arthur Berrier to the stand. Berrier, a DEA chemist at the time—he’s since been arrested on unrelated charges, adding more drama to the affair—disagreed with colleagues that the substances the defendants sold were analogues. They wanted Berrier to explain his thinking to the jury, because favorable evidence from a DEA employee would be more persuasive than the word of hired experts, they figured.
But the government could stop Berrier from testifying under a rule that lets the feds control their employees’ testimony, Jackson said.
Unanimously overturning Jackson’s ruling, the Fourth Circuit said the government waived the privilege to keep Berrier off the stand because his conclusions were publicly available. It sent the case back to Jackson to answer the materiality question because he hadn’t ruled on it yet.
Though Berrier’s testimony would’ve been favorable to the defendants, it was “cumulative” and thus immaterial, Jackson ruled on remand.
Ritchie and Galecki were able to call other chemists to testify in their defense, so they didn’t need Berrier, the judge reasoned. “The only difference between Dr. Berrier and the two experts who did testify is that he worked at the DEA.”
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