By Chris Villani

Law360 (January 22, 2021, 5:41 PM EST ) Federal prosecutors on Friday opposed a bid by six Insys Therapeutics Inc. executives to delay prison for a seventh time amid the COVID-19 pandemic, saying the new Biden administration has promised to make prisons a priority in vaccine distribution.

In an opposition filed almost exactly one year after sentencing hearings for Insys founder John Kapoor and several former underlings wrapped up, the government noted the Bureau of Prisons has already begun doling out COVID-19 vaccines to both staff and inmates at more than half of the nation's federal correctional facilities.

"As of January 15, 2021, the BOP leads all jurisdictions and federal entities in its rate of vaccination utilization, having administered 97 percent of all COVID-19 vaccine doses received," according to the government's memorandum, which opposed further prison delays for Kapoor, Michael Babich, Michael Gurry, Joe Rowan, Rich Simon and Sunrise Lee.

"All of the BOP's facilities are expected to receive their first dose by mid-February," prosecutors wrote. "Importantly, on January 21, 2021, President Biden explicitly committed the federal government to distributing 'vaccines to facility staff and incarcerated individuals in jails, prisons and detention centers.'"

As the pandemic has continued to rage across the country, each of the executives has asked to delay the start of their prison terms — which range from 66 months for Kapoor to a year and a day for Lee — until April. Kapoor, 77, has cited his age as a possible risk factor for serious complications should he contract COVID-19, and argued that he should be up soon for a vaccination in his home state of Arizona.

Lee, for her part, has said a delay is needed to avoid "prison parenting" for her teenage son in the middle of the health crisis.

When U.S. District Judge Allison D. Burroughs agreed to delay the report dates for the sixth time, she said the answer would have been "no" under any other circumstances. If she is inclined to grant another delay this time, prosecutors asked that it not be pushed back until April, again citing the new administration and its priorities for inmates.

"The court explicitly raised concern about protecting the prison population in its last order extending the surrender dates in this case," the memorandum states. "Now, as public health officials make decisions about the distribution of the vaccine, it is clear that protocols based upon scientific criteria will prioritize to some degree prison populations."

The focus on inoculation for prison populations means "concern about the risks faced by prisoners is not, or very soon, will no longer be, a reason to defer surrender," prosecutors wrote.

The government also asked that the executives be compelled to provide details about their efforts to get a vaccine, where they fall in the pecking order for distribution in their respective states, and to provide more detailed information about conditions they claim to have that put them at risk if they come down with COVID-19.

"The court has heard that two defendants have asthma. One defendant claims hypertension, and another asserts renal disease," prosecutors wrote. "Nevertheless, even with physician notes and/or medical records, no defendant has provided evidence that they have been diagnosed with a disease that the [the Centers for Disease Control and Prevention] believes might present an increased risk for severe illness."

Gurry's lawyer, Tracy Miner of Miner Siddall LLP, called the government's opposition to the prison delay bid "mean-spirited."

A government representative declined to comment on the motion Friday. Counsel for the other executives either declined to comment or did not respond to comment requests.

Kapoor, Gurry, Rowan, Simon and Lee were all convicted following a three-month trial in 2019 of orchestrating a scheme to bribe doctors with speaking honorariums and other perks so they would prescribe more and higher doses of Insys' powerful fentanyl spray, Subsys. They are currently appealing to the First Circuit.

Babich, the former Insys CEO, pled guilty on the eve of trial and testified against his former colleagues.

The government is represented by Donald C. Lockhart, Mark T. Quinlivan, Fred M. Wyshak Jr., David G. Lazarus and K. Nathaniel Yeager of the U.S. Attorney's Office for the District of Massachusetts.

Kapoor is represented by Martin G. Weinberg of the Law Office of Martin G. Weinberg PC and Beth Wilkinson, Kosta S. Stojilkovic and Chanakya A. Sethi of Wilkinson Walsh LLP.

Lee is represented by Peter C. Horstmann of the Law Offices of Peter Charles Horstmann.

Gurry is represented by Tracy A. Miner and Megan A. Siddall of Miner Siddall LLP.

Simon is represented by William Fick and Daniel Marx of Fick & Marx LLP.

Rowan is represented by Michael Kendall and Alexandra I. Gliga of White & Case LLP.

Babich is represented by Daniel C. Sale, Joseph Sedwick Sollers III, Lucas M. Fields and Mark A. Jensen of King & Spalding LLP and by Alexandra G. Watson and William H. Kettlewell of Hogan Lovells.

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.

--Editing by Marygrace Murphy.

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