Cadden, Chin Appeals Due for Hearing

By Walter F. Roche Jr.

Federal prosecutors say a judge was wrong when he ruled that victims of the 2012 fungal meningitis outbreak did not qualify as victims under federal law thus making them ineligible for some $80 million in restitution.
In a 20-page brief filed in advance of a Nov. 5 hearing before the 1st Circuit Court of Appeals government attorneys are asking for the restitution order to be imposed and for the sentence against a key figure in the outbreak to be increased.
The hearing will consider appeals and cross appeals stemming from the convictions of Barry J. Cadden and Glenn Chin, both connected to the now defunct New England Compounding Center, the company that caused the deadly outbreak.
The brief filed by Assistant U.S. Attorneys Amanda Strachan and George Varghese, also disputes the conclusion by U.S. District Judge Richard G. Stearns, that only a small portion of NECC's income could be considered in assessing the severity of the defendants crimes.
"NECC's gross sales reflect the proper loss calculation," the prosecution brief states.
Ironically briefs filed by lawyers for Cadden and Chin defend and support many of Stearns findings during their two separate trials.
Cadden was sentenced to a nine year prison sentence while Chin drew an eight year term. Both were convicted of racketeering, conspiracy and mail fraud charges but cleared on 25 counts of second degree murder. Both are now serving their sentences in separate federal prisons in Pennsylvania.
In a 59-page filing Chin's lawyer, James L. Sultan, argued that the government failed to provide sufficient evidence to justify a guilty verdict on the racketeering and conspiracy charges.
"The government failed to prove open ended continuity," the brief states, adding the government attorneys "cherry-picked evidence."
The brief contends that for most of its history NECC was a legitimate business and its customers were "generally satisfied. It made no sense for NECC to ship drugs it knew to be contaminated."
As for the eight year sentence, Chin's lawyer again sided with Stearns.
"The sentencing judge did not err and Chin's substantial sentence should be affirmed," the brief states.
The prosecution's 20-page brief argues that Cadden's nine year sentence should be increased because of the large number of victims and because Cadden's actions "created a risk that others would suffer serious bodily injury."
"A direct causal link runs from Cadden's conduct to the patients' injuries," the filing states, adding that Cadden's racketeering caused the patients'harm.
The brief faults Stearns for declining to increase the sentence.
"It (the court) held that the patients who received and were killed or injured by NECC medication were not victims of Cadden's racketeering and mail fraud offenses. But the district court got the standard wrong," the brief states, adding that a vulnerable victims enhancement was justified.
Cadden, like Chin had argued that the majority of NECC's customers got safe drugs and were satisfied, but prosecutors said that was not the case and Cadden and NECC openly flouted industry standards.
"Cadden knew or should have known the patients were vulnerable to serious illness or death," the filing states.
The prosecutors also faulted Stearns for failing to take into account some $5.7 million in NECC profits that were paid to Cadden's wife, a part owner of NECC.
They noted that the $5.7 million was deposited into a joint account of the Caddens. The court excluded the $5.7 million because Lisa Cadden was not charged with any crimes.
The Nov. 5 hearing is scheduled for 9:30 a.m. on the 7th floor of the federal courthouse in Boston.
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