Appellants Initial Brief in Internet Pharmacy Case

The issues on appeal in this internet pharmacy case are published in the TOC below. At sentencing, the government argued for loss of $211M. However, defense objection was granted, in part, resulting in advisory Guideline based on $68M. If you would like a copy of the 80-page brief--largely relating to the impact of market conditions on loss (Olis, Rutkoske), please request and it will be sent offline (80 pages):

LEGAL ARGUMENT

Point 1.

THE GOVERNMENT’S MATERIAL BREACH

OF THE PLEA AGREEMENT VITIATED THE

VOLUNTARY NATURE OF DEFENDANT’S

GUILTY PLEA

A. The Plea Agreement’s Exception to the Waiver

Of Appeal Clause Mandates A Direct Appeal

From the Conviction and Sentence to Challenge

The Voluntariness Of Defendant’s Guilty Plea

B. The Government’s Breach of the Plea Agreement

Vitiated The Voluntariness of Saran’s Guilty Plea

C. The Government Impermissibly Reduced the Extent

Of Its Sentencing Recommendation Citing Benefits

To Third Party Family Members Which It Argued

Should Not Accrue to the Defendant as the Sole

Beneficiary of Their Substantial Assistance As

Well as His Own

D. The Government Withheld Relevant Information

in Mitigation of Sentence From the Lower Court

Point 2.

THE PROSECUTOR’S ILLUSORY SENTENCING RECOMMENDATION—IN VIOLATION OF THE PLEA AGREEMENT—WAS BASED UPON CONSTITUTIONALLY IMPERMISSIBLE CONSIDERATIONS

A. Saran’s Criticism of FBI and US Attorney to CongressAnd Justice Department Headquarters 45

B. Retaliation for Exercise of Constitutionally Protected Speech

Point 3.

THE SENTENCING JUDGE APPLIED THE

INCORRECT METHODOLOGY TO LOSS DETERMINATION

IN THIS MARKET-DRIVEN CASE RESULTING IN

A MATERIAL MISAPPLICATION OF THE GUIDELINES

AND A PROCEDURALLY UNREASONABLE SENTENCE

A. Introduction

B. Reliable Loss Determination Requires Application

Of The Correct Methodology

1. Improper Methodology

Taints the Resultant “Loss” Figure

C. Pharmaceutical Economics

1. Jurisprudential Analysis of Wholesale Price

Litigation

2. AWP Versus WAC

3. Lack of Transparency

4. Introduction to Causation

5. Pre-Existing Adverse Market

Circumstances Created by the “Victims”

6. Relevant Conduct and Causation

7. Impact of Extrinsic Market

Conditions and Loss

8. Olis: A Watershed Case

D. The Government Failed to Meet its Evidentiary

Burden To Substantiated a Hotly Contested

Presentence Report

Point 4.

RESTITUTION AWARDS WERE IMPERMISSIBLY BASED

UPON CLEARLY ERRONEOUS DATA AND RELIEF

WAS GRANTED TO NON-VICTIMS

Point 5.

THE GOVERNMENT WITHHELD BRADY EVIDENCE

MATERIAL TO MITIGATION OF PUNISHMENT

Point 6.

THE SENTENCE IS UNREASONABLE BASED ON

THE JUDGE’S FAILURE TO STATE THE REASON

FOR ITS IMPOSITION WHICH IS UNCLEAR

FROM THE CONTEXT AND RECORD

Point 7.

IF REMANDED, THE CASE SHOULD BE REASSIGNED TO ANOTHER JUDGE