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 A federal jury in March found Barry Cadden, the co-founder and
ex-president of New England Compounding Center, guilty on
racketeering and fraud counts but cleared him of the most serious
charges, second-degree murder, for his role in a meningitis outbreak
that sickened 753 people in 20 states, killing 64.
But when the 12 jurors filled out their verdict slip, rather than
just checking findings of "guilty" or "not guilty," they filled in
numbers that prosecutors now say reflected vote counts showing a
majority found Cadden guilty on 21 of 25 murder counts.
The U.S. Attorney's office in Massachusetts argued in a motion filed
on Monday that the verdict form showed jurors believed Cadden was
guilty of murder and want the judge to consider that fact in
determining his sentence on June 26.
Former prosecutors said they had never seen a verdict slip quite
like it.
"While they failed to reach unanimity on these racketeering acts,
the jury's verdict confirmed that the murder racketeering acts were
proven by a preponderance of the evidence in this case, and can be
properly considered at sentencing," prosecutors wrote in the filing.
Their argument might work since judges at sentencing can consider
conduct proven by a standard lower than what jurors are instructed
to follow to convict someone, said David Schumacher, former deputy
chief of the health care fraud unit of the U.S. Attorney's office.
"They have a very good argument," he said. "They actually have
documentary evidence prosecutors never have in criminal cases."
A conviction on any of the 25 acts of second-degree murder Cadden
faced under a racketeering law could have exposed him to life in
prison. He could still face decades behind bars.
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A lawyer for Cadden did not respond to a request for comment. In
court papers, his lawyers have disputed that the jury did not
clearly acquit him and said prosecution claims to the contrary were
"wishful thinking."
Cadden, 50, was one of only two out of 14 people indicted in 2014
connected to the scandal at the Framingham, Massachusetts-based New
England Compounding Center to face murder charges. The other murder
defendant, former supervisory pharmacist Glenn Chin, is scheduled go
on trial on Sept. 19. He has pleaded not guilty.
Prosecutors said that in 2012, the compounding pharmacy sent out
17,600 vials of steroids labeled sterile that were contaminated with
mold to 23 states and that Cadden ignored the rules and put profits
before patients. Cadden denied wrongdoing.
(Adds missing word "care" to 7th paragraph.)
(Reporting by Nate Raymond; editing by Scott Malone and Tom Brown)
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