Sens To Be Sentenced April 30; Could Face Up To One Year In Prison
BY KEN LITTLE
Dr. Anindya K. Sen and his wife, Patricia Posey Sen, were each convicted Thursday by a U.S. District Court jury of misdemeanor counts of causing the introduction into interstate commerce of misbranded drugs.
The jury acquitted Patricia Sen of all felony charges brought by the government in connection with cancer and blood disorder treatment drugs received from a Canadian company by A.K. Sen's Greeneville-based medical practice, East Tennessee Hematology, Oncology and Internal Medicine.
Patricia Sen was indicted on 29 felony counts of interstate commerce of misbranded drugs, but the seven-man, five-woman jury convicted her of lesser included misdemeanor counts.
Dr. Sen had not been charged with felonies.
The convictions on the misdemeanor charges, but not any felony charges, indicate that the jury believed the Sens received drugs at the practice that were not approved for domestic use by the U.S. Food and Drug Administration -- but had no knowledge the drugs were misbranded or unapproved.
The maximum jail sentence the Sens could receive on the convictions is one year, but A.K. Sen defense lawyer Edward Yarbrough said his client and Patricia Sen may be eligible for probation.
The seven-man, five-woman jury deliberated more than 13 hours over two days before coming back with the verdict about 3:40 p.m. Thursday.
An April 30 sentencing date was set for the Sens by U.S. District Judge J. Ronnie Greer.
Yarbrough said the Sens' misdemeanor convictions will be appealed.
Anindya Sen showed no emotion as the jury verdict was read by Greer. Patricia Sen appeared visibly relieved. She leaned over in her chair and was comforted by her lawyer, Daniel Warlick.
The verdict ended the eight-day trial, which included testimony by about 20 government witnesses. The defense did not call any witnesses, and the Sens did not testify at trial.
OFFER TURNED DOWN
Before trial, the government made a plea offer that was rejected by the Sens. It called for guilty pleas to the same misdemeanor offenses they were convicted of.
The Sens have strenuously maintained their innocence since the initial indictment was handed up in June.
"The jury charge in this case said they did not have to know there was any illegal conduct taking place. The jury realized that and acquitted Ms. Sen of all fraud counts and found they unknowingly received unbranded drugs," said Yarbrough, a Nashville lawyer who is former U.S. Attorney in Middle Tennessee.
J. Alexander Little, who assisted with A.K. Sen's defense, is also a former federal prosecutor.
The prosecution sought to use invoices from Canada-based Clinical Care and other documents to show that the Sens knowingly ordered foreign-manufactured drugs that were not approved by the FDA.
Assistant U.S. Attorney M. Neil Smith, lead prosecutor, had no comment after the verdict.
were each convicted of 29 misdemeanor counts of causing the introduction into interstate commerce of
Patricia Sen had been indicted on a total of 83 felony counts. She was acquitted on charges of engaging in a scheme to defraud health care benefit programs, receiving merchandise imported contrary to law, and making a false material statement to FDA Special Agent Robert West, lead investigator in the case.
ACQUITTAL 'NOT A SURPRISE'
Yarbrough said the acquittal of Patricia Sen on the felony charges "was not a big surprise."
"It was a pleasant surprise. (The jury) was able to realize Ms. Sen was not guilty of any fraud," Yarbrough said.
Sen's main office in Greeneville and a satellite clinic in Johnson City remain open. Other doctors have been filling in at the practice. Sen has not been permitted to order medications since his indictment.
"His practice is impaired by this case, and we will try to get him reinstated," Yarbrough said.
Sen's primary concern was his wife, who served as office manager of the practice but has no formal medical training.
"The most favorable verdict would have been not guilty on everything, so this is the second-most favorable," Yarbrough said
"(Dr. Sen) got the minimum, but he got something. We're relieved. Obviously, the principal concern was Ms. Sen being convicted of a felony."
Yarbrough said the jury's verdict confirmed what defense lawyers had maintained throughout the trial -- that the government did not have sufficient evidence to prove the felony charges.
'DIDN'T EVER KNOW'
Matthew Sen, the son of the defendants, was in court throughout the eight-day trial. He said his parents were not aware that any drugs the practice received were illegal.
"They didn't even know they were getting unapproved drugs. They didn't ever know they were getting unapproved drugs," Yarbrough said.
Warlick said the jury's verdict speaks for itself.
"I did all my talking to the jury, and they apparently listened," he said.
The government alleged that public and private health care providers, including Medicaid and BlueCross BlueShield, were billed for misbranded drugs administered to patients at the practice between 2009 and early 2012.
Prosecutors said that the Sen practice purchased more than $3 million worth of unapproved misbranded drugs and billed providers $3.2 million.
The jury verdict caps a federal investigation that began in 2009. The first of three indictments against the Sens was made public in June. Some of the charges Patricia Sen was convicted of were also originally filed against A.K. Sen, but later dropped.
No testimony was presented at trial that any of A.K. Sen's patients were harmed by drugs administered at the practice.
Employees who testified at trial said A.K. Sen was dedicated to his patients and often went beyond the call of duty to ensure their well-being.
Before the Sens are sentenced, the U.S. Probation Office must prepare a pre-sentence report that includes recommendations about how federal sentencing guidelines apply to the case.
The Sens remain free on bond.
Smith told the jury in his closing argument that Patricia Sen authorized the purchase of unapproved drugs from Clinical Care. The Canadian company sold drugs made in Turkey, India and other foreign countries.
Trial testimony showed that drugs purchased from Clinical Care were at least 20 percent less expensive than similar 7FDA-approved medications sold by U.S. suppliers.
The investigation into the Sen practice began after the government started a separate inquiry into Dr. William R. Kincaid's McLeod Cancer and Blood Center in Johnson City.
In a case prosecuted in U.S. District Court in Greeneville before charges were filed against the Sens, Kincaid received a two-year prison sentence in June after pleading guilty lastyear to receiving misbranded drugs with intent to defraud or mislead in violation of the federal Food, Drug and Cosmetics Act.
Greer told jurors Thursday that they did a thorough job, and complimented prosecutors and defense lawyers for "a well-tried case."