Former federal prosecutor and Boston-based criminal defense lawyer Brad Bailey continues to be a go-to analyst for national news media outlets regarding trends and developments regarding federal criminal law and prosecutions. Last week, he was featured on NPR radio, where he provided follow-up commentary on US District Court Judge Allison Burrough’s recent post-conviction dismissal of controlled substance act violations in the widely-watched RICO trial and conviction in Boston of seven executives, including founder John Kapoor, from the Arizona-based pharmaceutical company INSYS Therapeutics.
In her ruling, Judge Burroughs stated the government failed to prove that the defendants intended for doctors to prescribe their fentanyl-based pain killer to patients who did not need it, resulting in the post-verdict dismissal of their convictions for violating the Controlled Substances Act and also, relatedly, on predicate acts alleging Honest Services Fraud.
“The Government could have easily proved bribery, but it elected not to charge bribes or kickbacks and now must live with that decision," Burroughs wrote in her ruling. "The Court only very reluctantly disturbs a jury verdict but finds it necessary to do so here.”
While Burroughs partially overturned the convictions, the decision she made was not meant to minimize or condone INSYS Therapeutics’ actions. She said the defendants were aware of the risk of abuse and addiction when using their product and still attempted to maximize the number of written prescriptions and prescribed dosages.
Prior to the commencement of the trial in United States District Court in Boston in late May, Bailey, who once worked as an Assistant US Attorney in Boston and is one of the City’s most experienced federal criminal defense attorneys, expressed concerns to print and electronic media covering the INSYS Trial about federal overreach involving efforts by federal prosecutors seeking to apply the Racketeering Statute, which was originally designed to combat traditional and structured organized criminal activity, to corporate and business activity that may be nothing more than aggressive marketing and innovative sales techniques.
Attorney Bailey said on NPR, “[The ruling] shouldn't have surprised anybody ... because the underlying product was a Fentanyl-based spray that had a legitimate medical use on the market. To conflate that into narcotics distribution is a real slippery slope.”
According to him, Judge Burroughs decision should be seen as another warning-shot across federal prosecutors’ bows by the federal judiciary about trying to fit “square pegs into round holes” by criminalizing otherwise legitimate business practice, in this case, distributing a fentanyl-based nasal-spray that not only has a legitimate health care purpose (for cancer-pain treatment) but was presumably licensed by the FDA, through use of federal criminal statutes that don’t necessarily apply.
Bailey said it's too early to say what impact the dropped convictions might have on the sentence, “It is going to bring down the sentencing calculus and result in a sentence that's going to be less tomorrow than what it was this morning.”
Keep in mind, the defendants’ convictions on Racketeering Conspiracy and Wire and Mail Fraud still stand, notwithstanding the dismissals. However, without application of the Controlled Substances Act violations and Honest Services Fraud to the sentencing analysis, the applicable advisory sentencing range under the United States Sentencing Guidelines will be lower than had initially been projected after the defendants’ convictions in June.