Appeals Denied for Two NECC Defendants

By Walter F. Roche Jr.

Concluding that the jurors findings of guilt were justified by the evidence, a federal judge today denied the appeals of two of five defendants convicted on charges ranging from racketeering to mail fraud in the probe that followed a deadly 2012 fungal meningitis outbreak.
In two separate but overlapping decisions U.S. District Judge Richard G Stearns sitting in Boston, Mass. denied the acquittal motions filed by two pharmacists employed at the now defunct drug compounding company blamed for the outbreak. He also denied motions filed by Gene Svirskiy and Christopher Leary for a new trial.
The two were among five convicted late last year following a 10-week trial. Appeals of the three remaining defendants are still pending.
Leary was convicted of mail fraud and violations of the Food Drug and Cosmetic Act FD&C), while Svirskiy was convicted of racketeering, conspiracy, mail fraud and violations of the FD&C.
Both defendants had argued that they were unfairly prejudiced by limited trial testimony about the deaths from the 2012 fungal meningitis outbreak when the charges they faced did not involve the drugs that caused the outbreak.
Stearns, however, cited his repeated instructions to the jury noting in which he stressed that the defendants were not involved in producing the deadly steroids. He allowed limited testimony on the outbreak, he noted, so that jurors could understand why the New England Compounding Center came under such close scrutiny
"While the issue was a delicate one," Stearns wrote, "I am confident that the correct balance between the jury's right to know and the defendants' right not to be prejudiced by too much extraneous information was struck."
In the 13-page Svirskiy decision Stearns said prosecutors presented ample but not overwhelming evidence for the jurors to conclude that he was a participant in a conspiracy. He noted that Svirskiy instructed an unregistered drug technician to leave the clean room when state inspectors appeared at the Framingham, Mass. facility.
He said evidence showed Svirskiy and others were aware of test results showing mold and bacteria were present in the clean room where sterile drugs were being prepared.
"Yet no meaningful remediation was undertaken," the opinion states.
While both Svirskiy and Leary had argued that they had never had any direct communication with NECC's customers, Stearns concluded that was not necessary to prove their involvement. He wrote that the issue was not whether they made any direct misrepresentations to NECC's customers but whether they were knowing participants in a scheme to defraud those customers.
Citing trial evidence he concluded that Leary was aware there had been a "fungal bloom" at NECC in the months preceeding the outbreak.
"The jury heard ample evidence that Leary was aware of the widespread (if episodic) contamination in the clean room," the 12 page Leary decision states.
As for the motions for a new trial Stearns said Svirskiy's four arguments were "not load bearing" and Leary's did not meet the strict standards to justify a new trial.
Svirskiy's sentencing is set for May 29, while Leary's is set for the following day.
Stearns has yet to rule on the appeals filed by two other defendants, Gregory Conigliaro and Sharon Carter, who were convicted along with Svirskiy and Leary. In a related matter Conigliaro today filed a motion asking for a further delay in his sentencing until July 15 or later.
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