SAN FRANCISCO (CN) — A federal judge said prosecutors may have withheld exculpatory evidence in a case accusing FedEx of conspiring with online pharmacies to ship illicit prescription drugs.
U.S. District Judge Charles Breyer on Thursday said meetings with law enforcement officials could show the global shipping company’s state of mind when it delivered the prescriptions, and whether it knew it was doing something illegal.
Under Brady v. Maryland, such evidence could be considered exculpatory or impeaching information that the government is required to turn over to the defense.
“We are aware of three people who were in law enforcement who met with FedEx a lot of times on subject of online pharmacies,” FedEx attorney Cristina Arguedas told Breyer in court.
“In the last month or so the government went to these three people and said, ‘When you were meeting with FedEx, did you ever ask FedEx to stop shipping for any online pharmacies?’ and the answer was, ‘No, we did not.’ In my view, there can’t be anything more Brady than that.”
In a heated exchange with Assistant U.S. Attorney Kristen Ault, Arguedas said Ault had not truthfully recounted the nature of her conversation with the agents when she refused to turn over any reports on those meetings to the defense.
Ault said the agents did not say FedEx could ship the drugs, but did not say not to ship the drugs, either: that basically, the subject never came up.
“The fact that it never came up is not Brady,” Ault told Breyer. “We asked them if you told them either way and they said the subject didn’t come up.”
“No, that is not true!” Arguedas shouted.
Lowering her voice, she added: “I seriously want counsel to understand that the way they are interpreting these things is incorrect.”
Arguedas cited a conversation Ault had with former chief of pharmaceutical investigations for the Drug Enforcement Administration: “Ms. Ault said, ‘Did you ever tell FedEx to stop shipping?’ and she said, ‘No, I didn’t,’ and Ms. Ault said, ‘Why not?’ and she said, ‘Because how would they know it wasn’t heart medication they were stopping?'”
Ault allegedly asked another DEA official the same question, in another conversation. Arguedas said that agent also answered no, and when Ault asked why, the agent replied that to do so could jeopardize other DEA investigations, and if that were to happen, “‘Those guys would throw me out of a tenth-floor window.'”
Arguedas said these law enforcement agents came to her willingly with the information, and that for all she knew there could be many more.
She asked Breyer to order the government to disclose any reports or information it has on the subject.
“If a government agent doesn’t tell them to stop doing that which is brought to their attention, isn’t that Brady?” Breyer asked Ault.
Ault replied that the agents were not required to tell FedEx not to ship the drugs.
“Oh, maybe,” Breyer said. “But that doesn’t mean they committed a crime, and doesn’t that go to their state of mind as to whether they had to do X or not?”You know what?” Breyer asked. “It’s Brady. As far as I’m concerned, it seems close enough to Brady that you ought to turn it over.”
He added: “Remember, this was a prosecution where the government said, ‘Whatever we have, we’re going to give to the defense.’ And we understand this whole case turns on what did [FedEx] know and what did they do. And one of the things they know is the government isn’t telling them not to do X.”
Breyer declined to rule from the bench, ordering both sides to file written motions.
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