A new Supreme Court appeal spotlights one of the strangest criminal sagas prosecuted under one of the most peculiar drug laws, known as the Analogue Act.
The federal law bans selling substances that are “substantially similar” to ones that have already been deemed illegal. But the vague and unscientific nature of the term “substantially similar” has led to confusion in courts. Multiple federal judges have questioned its legality, and even chemists within the Drug Enforcement Administration have disagreed about its meaning.
Notably, the justice most interested in the appeal could be Donald Trump appointee Neil Gorsuch. He wrote critically of the 1986 act when he was on the Denver-based 10th U.S. Circuit Court of Appeals. So it’s unsurprising that Charles Burton Ritchie and Benjamin Galecki name-check Gorsuch repeatedly in their petition filed Thursday, including a 10th Circuit decision in which he called the law “a curious animal,” deeming it “an open question, after all, what exactly it means for chemicals to have a ‘substantially similar’ chemical structure — or effect” and “whether terms like those will admit of fair application and afford citizens fair notice.”
Cat-and-mouse game
The Analogue Act passed in 1986 as an attempt to combat so-called designer drugs that enter the underground market faster than the government can ban them. Usually, breaking a drug law is straightforward — say, by selling cocaine or heroin, which everyone knows are illegal. By contrast, the Reagan-era act captures anything that federal prosecutors can convince a jury is “substantially similar” to an already scheduled drug. That gives the authorities a wide net, one whose ambiguous shape raises the question of whether it’s too wide for the Constitution, which is supposed to guarantee notice of what’s illegal.
Ritchie and Galecki’s case gives Gorsuch the chance to weigh in from Washington, where it takes four justices to grant review. It’s unclear whether the court will do so, partly because the justices only take a relative handful of cases each term despite receiving thousands of petitions — this past term they heard about 60. But the court previously scrutinized the act in the 2015 case McFadden v. United States, before Gorsuch joined the court. In that decision, the justices unanimously put a greater burden on the government to prove analogue cases, but they left the law and its “substantially similar” standard intact.
Citing remaining confusion after the McFadden ruling, Ritchie and Galecki told the high court in their petition on Thursday that there’s more work yet to do:
While it may be initially comforting that after McFadden defendants cannot be convicted of an Analogue Act offense unless they “know” the substance at issue qualifies as an analogue, that comfort fades swiftly upon recognition that the supposed object of “knowledge” is the purely subjective question of “substantial similarity” in chemical structure. Because all that may be had regarding these assessments is opinion rather than knowledge, … any finding that a defendant “knew” the substance qualified as an analogue is inherently fictional. Allowing juries to nevertheless speculate and decide that defendants had such “knowledge” – especially as to a substance the scientific community believes does not qualify as an analogue – is a game of roulette that cannot be permitted under the due process clause of the Fifth Amendment.
The backstory of Ritchie and Galecki’s case is a long, strange one (I wrote a book about it, called “Bizarro,” which the petition cites). But they had a company based in Pensacola, Florida, that distributed synthetic products commonly called “spice,” seen as a cannabis alternative that some people have used to beat drug tests that would flag for the natural plant. The main ingredient in spice that gets people high is synthetic cannabinoids, which aren’t necessarily illegal; it depends on the specific chemical and there are many variations. It’s a cat-and-mouse game, with spice sellers like Ritchie and Galecki using chemicals that weren’t scheduled and shifting to new compounds as older ones were banned. One of their spice products was called “Bizarro,” named after Superman’s twisted doppelganger who was hatched in a “bizarre science experiment gone horribly wrong.”
Ritchie then made a move that a typical drug dealer wouldn’t have: He invited the DEA to their Florida headquarters.
They had a Nevada warehouse that was raided in a 2012 nationwide enforcement effort called Operation Log Jam. Ritchie then made a move that a typical drug dealer wouldn’t have: He invited the DEA to their Florida headquarters. He gave an agent a tour of their operation and samples of their spice, which he knew didn’t contain scheduled chemicals because they lab-tested their products before shipping them to shops around the country. Still, Ritchie offered to shut down the business, but the agent said it looked like they were trying to comply with the law and that he couldn’t interfere with their right to commerce.
Nonetheless, they were charged under the Analogue Act in 2015, years after they had left the business and embarked on careers in film and entertainment. Remarkably, they were indicted in three separate federal districts and taken to trial three times to date.
Their first trial, in Virginia (one of the states they distributed to), ended with a hung jury in 2016, because jurors couldn’t reach a verdict under the Analogue Act’s vague test. The 2017 retrial almost ended the same way, but the second jury eventually found them guilty, after prodding from U.S. District Judge Raymond Jackson to decide one way or the other. He sentenced them to about three decades in prison apiece. But their convictions were overturned on appeal because the judge had wrongly blocked DEA chemist Arthur Berrier from testifying for the defense. Berrier thought the substances they sold weren’t analogues — that is, he thought they weren’t substantially similar to scheduled drugs. Obviously, that would have been damning testimony from a government expert. At the 2019 trial in Nevada leading to this Supreme Court appeal, the judge there let Berrier testify. But in another twist, the expert chemist was by then a convicted felon himself, following his arrest in a sting operation when he allegedly tried to meet an underage girl who was actually an undercover officer. So while he gave his expert testimony that contradicted the prosecution’s stance, the jury heard he was a felon who no longer worked for the DEA, clouding his testimony that could have otherwise demolished the government’s case. Ritchie and Galecki were convicted under the Analogue Act as well as a federal kingpin law that carried a 20-year minimum and life maximum. At their sentencing, U.S. District Judge Andrew Gordon stuck to the 20-year minimum and called out the Analogue Act in the process. He was troubled that while a typical dealer “clearly knows he or she is selling an illegal substance,” someone accused of selling alleged analogues “may not know he or she is breaking the law until the jury decides it is in fact an analogue.” Gordon granted Galecki, 50, compassionate release last year for health issues he faced while incarcerated and reduced his sentence to time served; the judge also granted Ritchie’s release pending appeal, meaning the 53-year-old returns to prison if they lose. The 9th U.S. Circuit Court of Appeals rejected Ritchie and Galecki’s analogue and kingpin claims last year, prompting the high court bid. On top of the analogue argument — that the act is “void for vagueness” in their case — they said in their petition that their kingpin convictions are invalid because one of their alleged underlings was acquitted at the Nevada trial; they cited disagreement among the federal circuits over whether a conviction can stand in that situation. Such a “circuit split” makes the justices more likely to grant review, providing an additional (or alternative) reason for the court to take the case. The Justice Department can respond with its own brief before the court considers whether to do so. Subscribe to the Deadline: Legal Newsletter for updates and expert analysis on the top legal stories. The newsletter will return to its regular weekly schedule when the Supreme Court’s next term kicks off in October.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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