In making his fifth virus-related bid to delay reporting to prison, the onetime billionaire argued through his attorneys that the pandemic is at peak levels and "the risk to him is as great as ever."
"Of all defendants in this case, he is the only one who is elderly, and he is at the highest risk category of hospitalization and death from the virus," Kapoor's attorneys wrote. "Yet his unique circumstances also give hope that he will be vaccinated against COVID-19 in the coming months."
The motion asks U.S. District Judge Allison D. Burroughs to push back the start of his term from Feb. 2 to April 6.
Kapoor, 77, is in the group identified by the U.S. Centers for Disease Control and Prevention as the second-highest priority to receive a COVID-19 vaccine. He argued that his home state of Arizona is following the CDC approach and told Judge Burroughs he would take the vaccine as soon as it became available to him.
"That would be safer and more humane than making him surrender without vaccination, including because [Bureau of Prisons] is placing unvaccinated new surrenders in extended solitary quarantine to protect existing inmates from new virus exposure, and because COVID-19 vaccination requires multiple courses over time and thus cannot simply be administered to an inmate on his way into a BOP facility," the motion stated.
Maricopa County, Arizona, announced recently that Phase 1B of its vaccination rollout, which includes people over 75, will begin on Jan. 11.
According to the motion, the government opposes Kapoor's request. A representative for the U.S. attorney's office declined to comment on Friday.
Kapoor was convicted along with four other former Insys higher-ups in a blockbuster 2019 trial. He first asked to delay the start of his prison term due to the pandemic in April, which Judge Burroughs granted over the government's opposition.
Prosecutors agreed to subsequent delays in July and September, and Judge Burroughs granted another postponement for Kapoor and the other executives until Feb. 2 in November, again over the objections of the government. In a brief Nov. 18 docket entry, Judge Burroughs wrote that "under any other circumstances, these motions would be denied."
This would be the seventh total prison delay for Kapoor if it is granted. In pushing back against the last bid, prosecutors wrote "while the risks associated with COVID-19 are real and worthy of considered action, those risks do not require the criminal justice system to remain static."
Friday's motion was filed by Kapoor only, as he said his circumstances are unique relative to his fellow defendants as the only one who is elderly and therefore in the highest risk category for hospitalization or death should he contract the virus.
Kapoor's attorneys declined to comment further on Friday.
In May 2019, a jury convicted Kapoor along with Michael Gurry, Joe Rowan, Rich Simon and Sunrise Lee of orchestrating a scheme to use a speaker program to funnel cash and perks to doctors so they would prescribe Subsys, an expensive Insys fentanyl spray.
Prosecutors alleged the defendants then lied to insurance companies about patients' diagnoses in order to get the insurers to pay for the drug.
Kapoor and the other convicted executives are appealing the jury's verdicts to the First Circuit.
The government is represented by David G. Lazarus, Fred M. Wyshak Jr., K. Nathaniel Yeager, Alexandra W. Amrhein, Elysa Q. Wan and Mark T. Quinlivan of the U.S. Attorney's Office for the District of Massachusetts.
Kapoor is represented by Beth Wilkinson, Chanakya Sethi and Kosta S. Stojilkovic of Wilkinson Stekloff LLP, Martin G. Weinberg of the Law Offices of Martin G. Weinberg PC 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.
--Editing by Janice Carter Brown.
For a reprint of this article, please contact reprints@law360.com.