Monday, May 8, 2017
Prosecutors Charge Acquittal Motion Patently False
By Walter F. Roche Jr.
Federal prosecutors are charging that the acquittal motion filed in behalf of a former drug company executive is based on "patently false and dishonest" allegations.
In a 48-page motion filed Monday in U.S. District Court in Boston, Mass., the U.S. Attorney asked the court to deny the motion for acquittal or a new trial for Barry J. Cadden, the president of a now defunct drug compounding firm.
Noting that a 12-member jury found Cadden guilty of 57 felony counts, including racketeering and mail fraud, the motion recounts detailed trial testimony in which witnesses describe the unsanitary conditions at the New England Compounding Center, the Framingham, Mass., the firm that Cadden headed.
Cadden, whose trial ended over a month ago, was one of 14 person indicted in late 2014 following a federal probe of the 2012 fungal meningitis outbreak which sickened some 778 patients killing 76 of them. State and federal regulators determined that the outbreak was caused by fungus laden drugs shipped by NECC.
While the jury found Cadden guilty of racketeering and mail fraud, they acquitted him of 25 counts of second degree murder.
In their motion federal prosecutors noted that while the second degree charges were not affirmed by all of the jurors, a majority did vote to convict him on 21 of the 25 murder counts.
Charging that trial testimony showed NECC manufactured drugs under "filthy conditions," the motion argues that the limited testimony on the second degree murder counts did not prejudice the jury, as Cadden had argued.
Stating that there was "no prejudicial spillover," prosecutors asserted that charges of prosecutorial misconduct were "patently false and dishonest."
In a separate motion prosecutors disputed Cadden's claim that prosecutors improperly presented jurors with a binder of drug tests and other evidence. They noted that the presiding judge, U.S. District Judge Richard G. Stearns, concluded that the binder was never given to jurors during their deliberations.
Assistant U.S. Attorneys George Varghese and Amanda Strachan said the binder was only used as a "pedagogical devise," during closing arguments. They also noted that Cadden's lawyers did not raise any objections when the binder was described to jurors.
The motion against acquittal cites detailed testimony during the trial about the fact that NECC routinely shipped drugs before they had been tested for sterility even though the company repeatedly assured customers that the drugs were quarantined until tests were completed.
Citing "a staggering amount of evidence" presented to jurors, the motion states that it was reasonable for the jurors to conclude that "Cadden operated NECC as a fraudulent enterprise on a massive- deadly scale."
Cadden is scheduled for sentencing on June 29.