Appeals Court Gives Gov't One More Chance To Lock Up Men For Producing An 'Illegal' Drug Its Own Chemist Said Wasn't Illegal

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How many chances does the government get to try to convict a couple of people for selling a drug analogue the DEA's own chemist said wasn't "substantially similar" to any controlled substance? Apparently the government will get at least one more swing at the plate, having batted .500 during its first two tries.In 2012, the DEA raided Zencense, a business owned by Charles Ritchie and Benjamin Galecki. They were charged with conspiracy to distribute controlled substance analogues. The "spice" made by Zencense used XLR-11 and UR-144 as active ingredients. The government claimed these were analogues of JWH-018, which is a controlled substance.The defendants argued that their spice was not an analogue of a controlled substance. If true, this sunk the government's case, because the conspiracy charges relied on the "knowing" distribution of illegal drug analogues.The government claimed XLR-11 and UR-144 were pretty much the same thing and pretty much identical to JWH-018. This testimony was undercut by one of the DEA's own chemists, who had stated in other prosecutions that UR-144 was not an analogue of JWH-018. Not only that, but the chemist's professional opinion on this subject was freely available online, as part of a handout on litigating synthetic drug cases.The defendants hoped to have the chemist testify on the differences between these substances, which would likely have resulted in them being found innocent of the conspiracy charges. The trial court denied this request, resulting in the defendants' first appeal.On appeal, the Fourth Circuit sided with the defendants, finding the government could not claim the chemist's testimony was "privileged" -- not when it had relied on it in other prosecutions. It sent the case back down to the district court to reconsider the admissibility of this exculpatory evidence.The case is now back in the Fourth Circuit Appeals Court, thanks to the lower court deciding once again that this testimony isn't relevant and would have had no effect on the outcome of the case. That the outcome was one mistrial and one hung jury (one that was un-hung with an Allen charge) seems to have escaped the attention of the court.The Appeals Court [PDF] wants to make sure this doesn't happen again. The lower court looked at the testimony that directly contradicted the assertions made by the government and shrugged.

On remand, the district court concluded that Dr. Berrier’s testimony was not material to Defendants’ case because it would have been “merely cumulative” to testimony from Defendants’ two other expert chemists. Ritchie III, 2018 WL 4693811, at *4. The district court determined that those chemists used the same methods and came to the same conclusion as Dr. Berrier, and that his “position at the DEA would not provide any new relevant information” to the jury. Id. The court accordingly held that Dr. Berrier’s exclusion from the trial did not violate Defendants’ Sixth Amendment compulsory process rights.

Barred from questioning Dr. Berrier, Defendants relied on the expert testimony of two chemistry professors, Drs. Croatt and Dudley, who gave the same opinion that Dr. Berrier would have given—an opinion that contradicted Dr. Trecki’s. During cross-examination, the Government questioned Defendants’ “hired guns” about the compensation they received for testifying. In convicting Defendants, the jury ultimately rejected Drs. Croatt and Dudley’s expert opinion about XLR-11 and JWH-018.

[W]e disagree with the district court’s analysis of the “not merely cumulative” component, as we conclude that Dr. Berrier’s testimony was qualitatively different from the testimony of the other defense witnesses. In stark contrast to Drs. Croatt and Dudley, Dr. Berrier was not paid outside his DEA employment to form his opinion about XLR11’s chemical similarity to JWH-018. Nor would Defendants have paid him to testify at trial. Consequently, the Government could not have impeached Dr. Berrier in front of the jury for having a pecuniary motive for testifying. Dr. Berrier’s inability to be impeached on that ground made his testimony unique and particularly relevant, not cumulative.[...]Also unlike Drs. Croatt and Dudley, Dr. Berrier could have rebutted the testimony of Dr. Trecki, the Government’s DEA expert, with his own knowledge of the DEA’s processes and analyses. His expert testimony, which diverged from Dr. Trecki’s, could have shown the jury that the DEA’s own scientists could not agree on the substantial similarity of the chemicals at issue. Drs. Croatt and Dudley could not have provided that type of rebuttal testimony.

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Embrace Fans: How One Mystery Modder Has Kept System Shock 2 Playable

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There's this weird thing in the video game industry in terms of how the industry reacts to fans doing things with their games. On one side, you have publishers that strictly control what fans can do with their games, even going the legal threat route at times. Other publishers are more permissive with game IP and are then shocked at what fans manage to do with their games. Still other publishers proactively create tools within their games to allow fans to create wildly cool productions within the games and then celebrate those fans. And, of course, there are fans manipulating properties such as original soundtracks to create new music as an homage to the original score.There is a wide spectrum of what fans want to do to express their fandom with video games, in other words, and also a spectrum of ways publishers respond to these dedicated fans. The original Doom, for instance, was created nearly three decades ago, but an active modding community has kept the game relevant by building on that original work. In the case of System Shock 2, however, it turns out the game originally released in 1999 is essentially only playable on modern machines due to the dedication of one single mystery fan.

After developer Looking Glass Studios closed in 2000, the game wound up in ownership limbo. For a time, it languished without updates. Getting it to run on more modern machines increasingly became a massive hassle. Then, in 2012, a fan released an unofficial update that took aim at those issues with almost cyborg-like laser precision. To this day, nobody knows the identity of the fan who released this update.The mystery savior of System Shock 2 goes by the online handle “Le Corbeau.” In 2012, according to a feature over at Rock Paper Shotgun, they first posted their revolutionary patch to the game, titled “NewDark,” on a French Thief fan forum. Nobody’s entirely sure how this fan pulled off an update of this magnitude, but it likely involved building upon an incomplete version of the game’s source code that leaked in 2010.

Nightdive, having found System Shock 2's actual source code in Looking Glass founder Paul Neurath’s closet, is now making its own improvements to System Shock 2, as well as a remake of the first System Shock and an all-new System Shock game. Despite all this, the studio—like perplexed but grateful fans—has no idea who Le Corbeau actually is. CEO Stephen Kick told RPS that he’s tried to reach out in hopes of collaborating over the years, but hasn’t had any success yet. “They have done an amazing job, but at some point those efforts will collide with our own as we wish to improve the original title,” said Kick.

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