Three Judge Panel to Hear Appeals

By Walter F. Roche Jr.

The three judge panel that will hear appeals and cross appeals from the principal criminal cases stemming from a deadly fungal meningitis outbreak includes a judge who authored a controversial memo justifying a drone attack on a U.S. citizen on foreign soil.
U.S. Circuit Judge David J. Barron and two of his colleagues on the 1st Circuit Court of Appeals will hear pleas in the cases of Barry J. Cadden and Glenn Chin, both tied to the New England Compounding Center, the company blamed for the outbreak.
Chin and Cadden were both convicted of racketeering, conspiracy and mail fraud charges and are now serving sentences - eight years for Chin and nine for Cadden - in separate federal prisons in Pennsylvania.
Federal prosecutors are asking the appeals court to, in effect, increase the penalties imposed on Cadden and they want the panel to reverse a decision by U.S. District Judge Richard G. Stearns that patients sickened in the outbreak do not qualify for some $80 million in restitution as victims under federal law.
Barron, a former acting assistant U.S. Attorney General, authored a secret 2010 memo concluding that President Obama had the legal authority to order a deadly drone attack on an American citizen, a suspected terrorist who was in Yemen.
Three years later Obama nominated Barron, then a Harvard Law School professor, to the post he now holds
The other two judges on the panel, Norman Stahl and Kermit Lipez, authored a decision finding that warrant-less searches of cellphones by police are categorically unlawful. Lipez, a senior judge, was an appointee of President Clinton. Stahl, also a senior judge, was appointed by George H.W. Bush.
Stearns already has seen a separate appeals court panel overturn his decision to dismiss some of the charges against three other NECC co-defendants, including Chin's wife, Kathy. A jury subsequently found her guilty and she awaits sentencing.
Barron also co-authored a decision overruling Stearns' decision to withhold, at least temporarily, the names of the jurors who ruled on Chin's case.
The appeals court panel is scheduled to hear arguments from Chin and Cadden's lawyers and federal prosecutors at 9:30 a.m. Tuesday in federal court in Boston, Mass.
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