Improper Jury Instructions Result in Partial Reversal

U.S. v. Bader, 2012 WL 1548579 (5/3/12) (Col.) (Published) - A partial defense victory re: jury instructions. The d. ct. committed plain error warranting reversal of 2 counts when it submitted an instruction that allowed the jury to convict on a theory upon which the defendant was never charged. The instruction told the jury it could convict the defendant, a pharmacist, of illegally importing a finished drug product [this was charged] or an ingredient [this was not charged]. There was a reasonable probability the jury concluded that, even though the HGH was not a finished drug product subject to a new drug application requirement, it was still an ingredient that was imported illegally. Such a probability of a conviction on an unindicted theory impugned the fairness, integrity and public reputation of the defendant's trial. The 10th also reverses the forfeiture of 4.8 million dollars because the amount might have been affected by the reversed convictions.
The defendant fails in his challenges to all of his other convictions. There was no First Amendment problem with evidence of advertisements by the defendant's business. The evidence showed the defendant purposefully marketed HGH and testosterone cypionate for unlawful anti-aging and body-building uses. The government didn't have to show the defendant filled an improper prescription to establish he violated 21 U.S.C. § 333. It was enough that he possessed the HGH with the intent to distribute it for an unlawful purpose. There was enough evidence that the defendant illegally imported a finished product and he knew it was illegal. So he can be retried on the reversed counts relating to that offense. "Overt act" and "substantial step" are different concepts. "Substantial step" is a higher threshold. But the law of the case required the government to present enough proof of a substantial step because it did not object to the "substantial step" instruction. And it did present enough proof to sustain the defendant's conspiracy conviction. For example, the defendant approved advertisements promoting big muscles and fighting aging. [The notion that an ad was not for body building was contradicted by the "overtly muscular male image prominently displayed"]. The defendant could not rely on a court decision for an estoppel defense. A court is not a government official or agency. The defendant's huge business clearly did not fall into the exemption for compounding for individual patients pursuant to valid prescriptions. The d. ct. permissibly limited the defendant's cross to stop counsel from "surreptitiously" introducing a legal definition of compounding that favored the defense. That the government got upset with a witness while interviewing her before trial did not amount to intimidating a witness. The government did not commit misconduct by objecting too much during trial. The prosecutors were just being zealous. Making an argument in only one sentence in the brief constituted a waiver of the argument.