U.S. v. Elmer

In prosecution on charges of conspiracy to defraud FDA and introducing adulterated drugs into interstate commerce that arose out of incidents in which defendant’s pharmaceutical company sold either over-potent or under-potent drugs that caused purchasers to incur severe medical reactions when ingesting said drugs, Dist. Ct. did not err in admitting 73 out-of-drug specification test results, even though defendant had argued that said tests constituted evidence of prior bad acts that was inadmissible under Rule 404(b). Said evidence did not violate Rule 404(b), since: (1) indictment on conspiracy charge alleged that defendant’s efforts to hide such out-of-specification test results were objects of charged conspiracy that were aimed to conceal from public that company was compounding and distributing numerous drugs that were over-and-under potency specifications; and (2) instant results constituted direct evidence of charged conspiracy. Also, any error in allowing govt. witnesses to make references to sexual nature of defendant’s communications with co-worker, who testified that defendant instructed her to lie to FDA, was harmless in light of overwhelming evidence of defendant’s guilt. Too, defendant’s 33-month term of incarceration was not subjectively unreasonable given extreme risks to infant patients posed by defendant’s deception, as well as his failure to address reports of over-potency of company’s drugs and his continued distribution of said drugs.