Cadden Criminal Evidence Challenged

By Walter F. Roche Jr.

Lawyers for a former pharmacist charged with second degree murder are asking a Michigan judge to exclude hundreds of pieces of evidence, contending they were illegally seized by federal agents in 2012.
In an 18-page motion filed in Livingston County Circuit Court, lawyers for Barry J. Cadden state that agents for the U.S. Food and Drug Administration seized computers asnd related equipment that were not auhorized under a search warrant.
Only after the computers had been seized did the FDA agents seek authorization for seizure of the computers.
The motion charges that the second search warrant was an attempt to paper over "the omission of the first warrant."
"The constitution does not allow this ex-post facto seizure," the motion filed by attorney Gerald Gleeson states, adding that the action also violated the Michigan Constitution.
Cadden was charged with 13 counts of second degree murder for his role as chief pharmacist and part owner of the New England Compounding Center, the company blamed for a 2012 fungal meningitis outbreak that ultimately took the lives of more than 100 patients, including the 13 Cadden is charged with.
The evidence at issue includes dozens of emails written or received by Cadden in the months leading up to the outbreak.
Citing an affidavit filed by FDA Agent Benedict Celso, the Cadden motion states that the document "does not specficially authorize the seizure of any computer equipment."
The Celso affidavit was filed to justify the initial search warrant. The second search warrant was accompanied by an affidavit from another FDA agent, Frank Lombardo.
The Lombardo affidavit, the Cadden motion states, admits that the computer equipment had already been seized.
Citing the fourth amendment to the U.S. Constitution, the motion states that unreasonable searches and seizures are barred.
"Mr. Cadden clearly has standing to challenge the search warrant," the motion states.
The motion was filed with Circuit Court Judge Michael P. Hatty. A hearing has been scheduled for Jan. 20.
Hatty is also scheduled to hold a status conference at 10 a.m. tomorrow on the case against Cadden and Glenn Chin, who was an NECC pharmacist.
Attached to the Cadden motion are copies of the original search warrant, the second warrant and the two affidavits.
' "The state should not now be allowed to capitalize on the federal government's violations of the fourth amendment," the motion concludes.
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