NECC Defendant Seeks No Jail Time

By Walter F. Roche Jr.

A convicted defendant in the criminal case stemming from a deadly fungal outbreak is asking a federal judge not to send him to jail, but sentence him to two years of probation and 100 hours of community service.
The 19-page sentencing memo for Christopher Leary was filed today in U.S. District Court in Boston, Mass by his attorney Paul Kelly.
The memo also urges U.S. District Judge Richard G. Stearns not to impose a fine and rejects the contention of federal probation officials that Leary's sentence should be enhanced because his actions caused losses to victims of $138,160.
Calling the probation estimate "erroneous, unfair and inconsistent with the jury's finding," Leary
said Stearns should find losses caused by his actions totaled only $3,595.
Leary was one of five persons connected to the New England Compounding Center convicted late last year following an eight-week trial. But, as Kelly's memo points, out the jury cleared Leary of the most serious charges, racketeering and racketeering conspiracy.
One of Leary's co-defendants, Gene Svirskiy, filed a sentencing memo last week urging Stearns to impose only one year of home confinement, instead of the maximum 20 year sentence he could have faced. Leary, according to federal prosecutors, also could have faced a maximum sentence of 20 years.
He was convicted of three counts of mail fraud and charges of introducing misbranded and adulterated drugs into interstate commerce.
None of the five were charged with a role in producing the methylprednisolone acetate that NECC shipped in 2012 causing the deaths of over 100 patients and sickening hundreds of others.
Leary, for instance, was charged for his role in shipping drugs that did not meet specifications, including sub-potent eye medications shipped to the Massachusetts Eye and Ear Infirmary.
Even as to that charge, the sentencing memo cites trial testimony showing that a pharmacy technician was responsible for the actual error and there was no way Leary could have known that.
Stating that Leary's brief tenure at NECC was "18 months of hell," the filing contends that Leary's sentence should also be limited because he was "a minor participant," had no supervisory role and had no ownership interest in NECC.
In fact, the memo states, Leary was the youngest and least experienced of those charged and was "bullied and ridiculed" by his colleagues.
Leary, Kelly wrote, "thought about quitting more than once but needed the income with his wedding only months away." He was married four days after NECC was shutdown.
Noting that it was likely Leary's pharmacy license will be permanently revoked, the memo states,"His (Leary's) sentence began the day he was indicted. He carries the guilt of working for a company that caused unprecedented patient harm."
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