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Law360 (November 2, 2020, 10:14 PM EST ) Insys Therapeutics Inc. founder John Kapoor asked a Massachusetts federal judge Monday to delay his 5½-year prison sentence for bribing doctors to prescribe opioids, saying that with three previous coronavirus-related extensions already having been granted and the pandemic worse than ever, now is not the time to lock the 77-year-old up.
The court already granted Kapoor extensions on starting his sentence since April after he petitioned for delays due to COVID-19. With underlying conditions including hypertension, difficulty breathing and chest pain and the existence of an abnormal EKG in the past year, Kapoor should be granted another extension, he told the court.
"The United States accounts for a large fraction of the known cases and deaths, as the virus has infected more than 9.1 million Americans and caused at least 229,932 deaths," Kapoor said. "This represents more than a 600% increase since Dr. Kapoor first moved to extend his self surrender because of the pandemic in late April 2020."
Citing a Washington Post article, Kapoor added, "The pandemic has not abated: On October 23, the United States recorded 'the highest daily number of coronavirus cases since the pandemic began' putting 'the nation on the precipice of what could be its worth stretch to date in the pandemic.'"
Four other executives and Kapoor were convicted in May 2019 in a closely watched racketeering trial, during which prosecutors accused the Insys higher-ups of a scheme to bribe doctors to prescribe a powerful opioid.
Kapoor was found guilty of a conspiracy the government said involved a sham speaker program used to funnel cash and perks to doctors so they would prescribe more — and higher doses — of Insys' pricey fentanyl spray, Subsys. This was the first successful prosecution of top pharmaceutical executives tied to opioid marketing and prescribing.
Kapoor is appealing his conviction to the First Circuit, and told the appellate court in September that prosecutors unfairly made him "a scapegoat for the national opioid crisis" and sought to sway jurors with heartbreaking but irrelevant testimony by addicted patients.
The facility where Kapoor is scheduled to serve his time — FPC Duluth in Minnesota — has "not been spared" from COVID-19, with at least 27 out of the 164 inmates tested for COVID-19 testing positive as of the time of the filing, Kapoor said Monday.
"Dr. Kapoor has previously requested two-month continuances of his surrender date," Kapoor said. "He has taken this piecemeal approach in order to allow the court to evaluate the evolving threat of the COVID-19 pandemic. A similar two-month continuance is warranted now given the increasing rates of COVID-19 infections and deaths and experts' well-recognized expectations" of a spike in cases during winter weather.
Counsel for Kapoor and the government did not immediately respond to requests for comment.
The government is represented by K. Nathaniel Yeager of the U.S. Attorney's Office for the District of Massachusetts.
Kapoor is represented by Beth Wilkinson, Kosta S. Stojilkovic and Chanakya A. Sethi of Wilkinson Walsh LLP, and Brien T. O'Connor and Aaron M. Katz of Ropes & Gray LLP.
The case is U.S. v. Babich et al., case number 1:16-cr-10343, in the U.S. District Court for the District of Massachusetts.
--Additional reporting by Chris Villani. Editing by Breda Lund.
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