United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. Crabtree United States District Judge
matter comes before the court on defendant Craig
Broombaugh's Motion to Compel (Doc. 983) and Motion for
Subpoenas Under Federal Rule of Criminal Procedure 17(b) and
17(c) (Doc. 984). The government responded to these motions
(Docs. 993, 994). For reasons explained below, the court
grants in part and denies in part defendant's motions.
following DEA email chain serves as the basis for
defendant's motions. In March 2012, Liquan Wong, the
chief of the Office of Diversion Control (ODE) Data Analysis
Unit, sent an email to David Rees. Mr. Rees worked in the
Drug Enforcement Agency (DEA) Forensic Science (SF)
department. In his email, Mr. Wong asked Mr. Rees for
“SF's comments on the chemical structure
evaluation” of certain substances. (Doc. 983-1 at 12).
Among these substances was UR-144. UR-144 is one of the
substances listed in the Second Superseding Indictment in
this case. Doc. 333.
April 6, 2012, Jeffrey Comparin, a laboratory director at SF,
sent an email to Scott Oulton, an Associate Deputy Assistant
Administrator for DEA's Office of Forensic Science. Mr.
Comparin copied other DEA personnel on the email. In it, Mr.
Comparin relayed that “Senior Research Chemist Arthur
Berrier has technically reviewed” the substances
identified in Mr. Wong's email, and he has concluded that
UR-144 and JWH-018 are not substantially similar in
structure. Doc. 983-1 at 10.
materials presented with defendant's motions seem to
suggest that UR-144 was listed on some aspect of ODE's
website as a controlled substance analogue despite Dr.
Berrier's conclusion. Indeed, Lance Kveto, the Chief of
Laboratory Operations Section, sent an email to Mr. Oulton
highlighting this assertion. The email read: “SF . . .
declined to officially opine on UR-144. However, it is now
listed on ODE's website . . . In case you're curious,
Dave is keeping a running list.” Doc. 983-1 at 14. Mr.
Kveto copied Mr. Comparin and David Rees on his email. Mr.
Kveto sent another email to Mr. Outlon and Mr. Comparin
stating, “Same recurring issue. Up to you and SF if we
wish to pursue and discuss further. I'm hitting a brick
wall at our level.” Doc. 983-1 at 15. Mr. Oulton
replied “I had the same question.” Doc. 983-1 at
15. Mr. Comparin also replied, asking, “Why didn't
we opine in accordance with the analogue committee
seeks a motion compelling the government to produce documents
referenced in these emails. And, defendant seeks subpoenas
for the DEA personnel referenced in the emails to testify as
Defendant's Motion to Compel (Doc. 983)
seeks an order compelling the government to produce three
documents that he believes existed at the Drug Enforcement
Agency (DEA) around April 2012. First, defendant seeks a
document describing the Analogue committee protocol for
determining that a substance is an analogue. Second,
defendant seeks an internal list of substances that the DEA
has concluded were analogues. Finally, defendant seeks the
“running list” referenced by “Dave”
at the DEA, which purportedly tracked substances added to the
DEA analogue list in violation of analogue-committee
contends that these documents are material to his defense.
Defendant asserts that his experts need to know and
understand the DEA's methodology for classifying
substances as analogues in order to opine on its sufficiency.
And, defendant contends that he is entitled to inquire
whether the DEA skipped steps in its methodology when it
classified UR-144. Defendant also contends that the
information is material to his “lack of
knowledge” defense, because if DEA personnel disagreed
whether UR-144 has a substantially similar chemical structure
to a controlled substance, it makes it more likely that he
did not know whether the substances had substantially similar
contrast, the government contends that defendants are not
entitled to the documents because defendant has not shown
they are material. First, the government contends that the
documents are not material because the ODE, not the SF
department, is the ultimate authority on whether a substance
qualifies as an analogue. Second, the government asserts that
the documents are not material because whether UR-144 is
listed on a list of analogues is not relevant to whether
defendant violated 21 U.S.C. § 813, the Controlled
Substances Analogue Act (CSAA). Also, the government asserts
that even if defendant could demonstrate the materiality of
the documents, the government does not possess them to
produce. Finally, the government contends that the documents
are protected by the deliberative process privilege.
court grants defendant's Motion to Compel the DEA
documents. The court finds that the documents are material to
the defense. Title 21 U.S.C. § 802(32)(A) defines a
controlled substance analogue, in part, as one “the
chemical structure of which is substantially similar to the
chemical structure of a controlled substance.” And,
under binding precedent, the government must prove beyond a
reasonable doubt that defendant knew the substances
listed in the indictment had a “substantially similar
chemical structure” to a controlled substance. See
McFadden v. United States, 135 S.Ct. 2298 (2015);
United States v. Makkar, 810 F.3d 1139 (10th Cir.
2015). So, while UR-144's placement on a purported list
as a controlled substance analogue does not determine
defendant's culpability under the CSSA, what defendants
knew or did not know about UR-144's chemical structure is
a central issue in this case. If sophisticated chemists at
the DEA disagreed over UR-144's chemical structure and
whether it was substantially similar to that of a controlled
substance, their disagreement-if indeed they disagreed-may
make it less probable that defendants knew the answer to this
central question. This is all that Fed.R.Evid. 401 requires.
court also has significant reservations about the
government's argument that the deliberative process
privilege shields these DEA chemists from questioning. After
all, the government has chosen to designate as its trial
experts chemists who routinely participate in the
deliberative process purportedly protected by this privilege.
But, even assuming that their deliberations once were
protected in the fashion that the government contends, the
government waived that privilege when it disclosed the DEA
emails during other prosecutions. See United States v.
$177, 844.68 in U.S. Currency, Nos. 13-cv-100,
12-cv-947, 2015 WL 4227948, at *3 (D. Nev. July 10, 2015)
(citing United States v. Fedida, 942 F.Supp.2d 1270
(M.D. Fla. May 1, 2013)).
the government asserts that none of this matters because the
documents sought by defendant's motion do not exist. This
may or not be the case. To state an obvious existential
truth, the government need not produce documents that do not
exist. But the government's assertion that the documents
do not exist does not end the dispute. Defendant deserves to
cross-examine DEA witnesses on this question and try to
persuade the jury that the documents indeed exist.
the court grants defendant's Motion to Compel production
of the three documents placed at issue by defendant's