                                    UNPUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                     No. 17-4357


UNITED STATES OF AMERICA,

            Plaintiff – Appellee,

      v.

CHARLES BURTON RITCHIE,

            Defendant – Appellant.


                                     No. 17-4377


UNITED STATES OF AMERICA,

            Plaintiff – Appellee,

      v.

BENJAMIN GALECKI,

            Defendant – Appellant.


Appeals from the United States District Court for the Eastern District of Virginia, at
Newport News. Raymond A. Jackson, District Judge. (4:15-cr-00018-RAJ-LRL-1; 4:15-
cr-00018-RAJ-LRL-2)


Argued: May 10, 2018                                          Decided: May 25, 2018


Before DUNCAN and AGEE, Circuit Judges, and SHEDD, Senior Circuit Judge.
Vacated and remanded by unpublished opinion. Senior Judge Shedd wrote the opinion, in
which Judge Duncan and Judge Agee joined.


ARGUED: Christian Lee Connell, Norfolk, Virginia, for Appellant Benjamin Galecki. J.
Lloyd Snook, III, SNOOK & HAUGHEY, PC, Charlottesville, Virginia, for Appellant
Charles Burton Ritchie. Eric Matthew Hurt, OFFICE OF THE UNITED STATES
ATTORNEY, Newport News, Virginia, for Appellee. ON BRIEF: Dana J. Boente,
United States Attorney, Alexandria, Virginia, Kevin Hudson, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Newport News, Virginia,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                            2
SHEDD, Senior Circuit Judge:

       A jury convicted Charles Burton Ritchie and Benjamin Galecki (the Defendants) on

multiple counts related to their distribution of synthetic marijuana, commonly known as

“spice.” Prior to trial, the Defendants sought to compel the testimony of a chemist

employed by the Drug Enforcement Agency (DEA) who had previously opined that the

active chemical ingredient in the Defendants’ spice (UR-144) was not an analogue under

the Controlled Substance Analogue Enforcement Act (the Analogue Act). The district court

denied the motion, finding that the Government properly claimed entitlement to the

deliberative process privilege. The Defendants challenge that ruling on appeal. Because we

find the Government has waived any reliance on that privilege, we vacate the convictions

and remand for further proceedings.

                                             I.

       The Defendants operated Zencense Incenseworks, LLC, 1 a wholesale manufacturer

and distributor of their own brand of spice. Zencense’s distribution network included most

of the United States, including the Hampton Roads region of Virginia. Zencense

experimented with several different chemical formulas for its spice but settled on a product

with XLR-11 and UR-144 as the active ingredients. 2




       1
           Zencense later changed its name to ZenBio.
       2
         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.

                                             3
       Zencense’s spice operations came to the attention of the Government and, in July

2012, DEA agents raided Zencense’s production facility in Las Vegas. Eventually, the

Defendants were charged in eight counts of a third-superseding indictment for conspiracy

to distribute controlled substance analogues, in violation of 21 U.S.C. §§ 846 & 813,

distribution of controlled substance analogues, in violation of 21 U.S.C. § 841(a)(1) &

(b)(1)(C), use of a facility in interstate commerce with intent to promote unlawful activity,

in violation of 18 U.S.C. § 1952(a)(3) & (2), and unlawful usage of a communication

facility, in violation of 21 U.S.C. § 843(b).

       To understand the issue presented in this appeal, a brief overview of the Analogue

Act is necessary. The Controlled Substances Act (CSA) makes it unlawful for “any person”

to “knowingly or intentionally” distribute a controlled substance. 21 U.S.C. § 841(a)(1).

The Analogue Act supplements the CSA by providing that “a controlled substance

analogue shall, to the extent intended for human consumption, be treated,” “as a controlled

substance in schedule I.” 21 U.S.C. § 813. A “controlled substance analogue” is a substance

whose “chemical structure” is “substantially similar to the chemical structure of a

controlled substance in schedule I or II,” and has a “stimulant, depressant, or

hallucinogenic effect on the central nervous system that is substantially similar to or greater

than” a schedule I or II controlled substance. 21 U.S.C. § 802(32).

       The Government alleges that XLR-11 and UR-144 are analogues of JWH-018, a

Schedule I controlled substance. 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,

                                                4
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.

       After becoming aware of Dr. Berrier’s dissenting view, the Defendants made a

Touhy 3 request for his testimony. 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.” (J.A. 85).

       At trial, 4 the Defendants presented expert testimony to support their position that

XLR-11 and UR-144 were not analogues because they differ in chemical structure from

JWH-018. The Defendants further argued that they did not know XLR-11 and UR-144

were analogues because they did not know the substances were similar in chemical

structure to JWH-018. At the close of evidence, and after the district court issued an Allen

charge, 5 the jury convicted the Defendants on all counts.

                                             II.


       3
           United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).
       4
        This was the second trial in this case. The first trial ended in a mistrial after the
jury hung on all counts against the Defendants.
       5
        “Derived from Allen v. United States, 164 U.S. 492 (1896), the commonly termed
Allen charge is a supplemental instruction given by a trial court when the jury has reached
an impasse in its deliberations and is unable to reach a consensus.” United States v. Cornell,
780 F.3d 616, 625 (4th Cir. 2015).

                                              5
       On appeal, the Defendants raise multiple arguments in favor of reversal. Because

we agree that the district court erred in its handling of the Defendants’ motion to compel

Dr. Berrier’s testimony, we vacate and remand.

                                              A.

       The Defendants argue that the district court should have permitted Dr. Berrier’s

testimony. Pursuant to 5 U.S.C. § 301, a federal agency may enact regulations governing

when its employees can testify at trial. United States v. Soriano-Jarquin, 492 F.3d 495, 504

(4th Cir. 2007). These so-called “Touhy” regulations allow for agency heads, rather than

individual employees, to determine if a subpoena “will be willingly obeyed or challenged.”

United States ex rel. Touhy v. Ragen, 340 U.S. 462, 468 (1951). If the Government

challenges a subpoena, it must make a “formal claim of privilege.” United States v.

Reynolds, 345 U.S. 1, 7-8 (1953). Here, the Government asserted the deliberative process

privilege, and, in a one-sentence order, the district court found “that the denial of this Touhy

request is appropriate as it would violate the Deliberative Process Privilege” of the DEA.

(J.A. 85).

       The Defendants contend that the district court’s ruling violated their Sixth

Amendment right to compulsory process. The Sixth Amendment provides that the

“accused shall enjoy the right” to, inter alia, “have compulsory process for obtaining

witnesses in his favor,” U.S. Const. amend, VI, a right we have recognized as “integral to

our adversarial criminal justice system,” United States v. Moussaoui, 382 F.3d 453, 471

(4th Cir. 2004). The right “does not attach to any witness the defendant wishes to call,” but

only to those who would testify “in his favor.” Id. (internal quotation marks omitted). The

                                               6
Supreme Court has clarified that the Sixth Amendment is violated when the witness

testimony “would have been both material and favorable to his defense.” United States v.

Valenzuela-Bernal, 458 U.S. 858, 867 (1982).

       Thus, we have explained that “a failure to disclose information under Touhy only

violates the defendant’s Sixth Amendment rights to present a defense where the defendant

can show that the excluded testimony would have been both material and favorable to his

defense.” United States v. Guild, 341 Fed. App’x 879, 886 (4th Cir. 2009) (internal

quotation marks omitted). In practical effect, the Government’s claim of privilege works

in concert with the normal Sixth Amendment analysis. That is, “[o]nce a defendant

demonstrates that a witness can provide testimony material to his defense, then the

government’s interest in its evidentiary privilege must give way.” United States v. Rivera,

412 F.3d 562, 569 (4th Cir. 2005). “The proper course . . . ‘is for the district court to order

production of the evidence or the witness and leave to the Government the choice of

whether to comply with that order.’” Id. (quoting Moussaoui, 382 F.3d at 474). “If the

evidence is material to the defense, then the government must provide the evidence or, in

most cases, dismiss the prosecution.” Id. at 570.

       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 6 material


       6
           Brady v. Maryland, 373 U.S. 83 (1963).

                                              7
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) (saved as an ECF opinion attachment). Therefore, Dr. Berrier’s opinion was

accessible to everyone but the jurors in this case.

       The absence of a privilege does not end the inquiry, however, because the

Defendants’ compulsory process right extends only to “favorable” and “material”

witnesses and evidence. Dr. Berrier’s testimony is clearly favorable to the Defendants, but

the district court did not consider materiality, and we leave it to that court to determine in

the first instance. If Dr. Berrier’s testimony is material and otherwise admissible, the

Defendants’ Sixth Amendment rights were violated by his exclusion from the trial.

                                             B.

       Because we are vacating the Defendants’ convictions and remanding for further

proceedings, including, potentially, a new trial, we exercise our discretion to address one

additional claim that is “likely to recur,” the Defendants’ challenge to the district court’s




                                              8
instruction on mens rea under the Analogue Act. 7 United States ex rel. Drakeford v.

Tuomey Healthcare Sys. Inc., 675 F.3d 394, 406 (4th Cir. 2012). We review de novo the

Defendants’ argument “that a jury instruction failed to correctly state the applicable law.”

See United States v. Jefferson, 674 F.3d 332, 351 (4th Cir. 2012). In reviewing jury

instructions, “we do not view a single instruction in isolation.” United States v. Rahman,

83 F.3d 89, 92 (4th Cir. 1996). We are obligated to “consider whether taken as a whole and

in the context of the entire charge, the instructions accurately and fairly state the controlling

law.” Id.

       In McFadden v. United States, 135 S.Ct. 2298, 2305 (2015), the Court held that to

sustain a conviction under the Analogue Act, “the Government must prove that a defendant

knew that the substance with which he was dealing was a controlled substance.” This

burden of proof could be satisfied in two ways in analogue cases, including by showing

“that the defendant knew the specific analogue he was dealing with, even if he did not

know its legal status as an analogue.” Id. Offering further guidance, the Court explained:

       The Analogue Act defines a controlled substance analogue by its features, as
       a substance “the chemical structure of which is substantially similar to the
       chemical structure of a controlled substance in schedule I or II”; “which has
       a stimulant, depressant, or hallucinogenic effect on the central nervous
       system that is substantially similar to or greater than” the effect of a
       controlled substance in schedule I or II; or which is represented or intended
       to have that effect with respect to a particular person. §802(32)(A). A
       defendant who possesses a substance with knowledge of those features
       knows all of the facts that make his conduct illegal, just as a defendant who



       7
       The Defendants raise several other objections to the district court’s rulings, which
we do not address.

                                               9
       knows he possesses heroin knows all of the facts that make his conduct
       illegal.

McFadden, 135 S.Ct. at 2305. On remand, we reiterated that the Government must prove

that “the defendant . . . knew either the legal status of the substance, or the chemical

structure and physiological effects of that substance.” United States v. McFadden, 823 F.3d

217, 223 (4th Cir. 2016).

       Here, the district court instructed the jury that:

       Under the second method [of proof], the government may establish that the
       defendant knew that the specific analogue he was dealing with, even if he did
       not know its legal status as an analogue. A conviction under the Analogue
       Act therefore requires the government to prove the defendant, number one,
       distributed a substance that had the chemical structure of an analogue and
       actually intended or claimed physiological effects of an analogue.

       Two, intended that the substance be used for human consumption.

       And, three, knew either the legal status of the substance or the specific
       analogue he was dealing with.

(JA 2027-2028). In an earlier instruction, the court had defined an analogue as follows:

       Controlled substance analogue means a substance, Number one, the chemical
       structure of which is substantially similar to the chemical structure of a
       controlled substance in Schedules I or II. JWH-018 was the controlled
       substance here.

       Number two, which has a stimulant, depressant or hallucinogenic effect on
       the central nervous system that is substantially similar to or greater than
       [JWH-018]

(J.A. 2026).

       On balance, although the mens rea instruction may have been helped by the further

explanatory sentences from McFadden, it tracks the Court’s general definition of the

second method of proof. In addition, the district court had already instructed the jury that

                                              10
a substance is an analogue only if it is substantially similar to a controlled substance in

both chemical structure and pharmacological effect. As we have noted, we examine jury

instructions “as a whole” and do not “succumb lightly to semantic fencing.” Noel v. Artson,

641 F.3d 580, 586 (4th Cir. 2011) (internal quotation marks omitted). Here, the instruction

is accurate on the law, an almost-verbatim quote from the Supreme Court, and it is not

misleading. The district court “could—and perhaps should—have instructed the jury” in

the manner proposed by the Defendants, but the “decision not to do so . . . and the accurate,

if more general, instructions that the court did give did not constitute an abuse of

discretion.” Id. at 595 (Wynn, J., concurring).

                                            III.

       Because the district court erred in concluding that the deliberative process privilege

shielded Dr. Berrier from testifying, we vacate the Defendants’ convictions and remand

the case for further proceedings consistent with this opinion.

                                                             VACATED AND REMANDED




                                             11
