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Appellate Law: Appellate Law and Practice
CA1: reselling prescription drugs causes loss
By S. COTUS
US v. Marti-Lon, No. 07-1040. This is an unlawful distribution of prescription drugs case. Essentially this shows how screwed up our prescription drug market is. ?The drug wholesalers then sold the drugs to Martí-Lón at a lower cost because Martí-Lón [falsely] represented that the drugs were meant to be resold in Brazil.? She resold them stateside, and that is a crime. (She also falsely claimed to be licensed, but that is another issue.)
But, setting that aside, this comes down to a normal criminal trial, so we got allegations of prosecutorial misconduct, loss calculation, juror misconduct below the fold.
First the sentencing. A U.S.S.G. § 5K1.1 (substantial assistance) request was proper denied. The government didn?t ask for it. Essentially the First says that coming to the government when a comrade in crime threatens you isn?t assistance. Then, the First says that ?intended loss? means the loss of profits to the drug companies. There were some stolen drugs (she was acquitted of part of this crime), but the First says that it is good enough to find loss based on that acquitted conduct if it is supported by a preponderance.
Jurors did all sorts of weird stuff. A juror saw a newspaper article. The judge conducted a kind of inquiry. The First says that it really didn?t make much of a difference because the juror was only exposed to what the prosecution had put into evidence.
The First says it wasn?t error to remove a juror that asked for the defense attorney?s business card.
The First says that a denial of a continuance to obtain impeachment evidence on whether a ?government witness on whether he had reported income paid to him by defendant to the tax authorities by using the witness's tax returns? wasn?t an abuse of discretion.
At trial, the government referred a few times to her tax returns. The First says this is okay because ?That defendant had a different view of her tax obligations does not make the government's argument improper.? Likewise, a mention at the sidebar of a document by the government didn?t prejudice the jury.
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