United States v. Bader
2012 U.S. App. LEXIS 9087
| 10th Cir. | 2012Background
- Thomas Bader, a Colorado pharmacist, owned College Pharmacy in Colorado Springs and oversaw HGH importation and distribution.
- College Pharmacy imported HGH from Genescience (China), then repackaged into smaller vials and sold them as Somatropin, with misrepresentations regarding FDA jurisdiction.
- In addition to HGH, College Pharmacy distributed testosterone cypionate to body-builders and anti-aging clinics, notably Peak Physique, often without prescription.
- From 2003–2007 the government charged 43 counts in a Second Superseding Indictment, including conspiracy, distribution, and importation violations, and sought a $4.8 million forfeiture plus a pharmacy building.
- Jury convicted on 32 of 33 counts; forfeiture of $4.8 million entered; post-trial motions led to acquittal on some HGH distribution counts.
- On appeal, the Tenth Circuit affirmed most convictions, reversed Counts 1 and 17 due to instructional error, and remanded for recalculation of forfeiture and further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Jury Instruction No. 20 improperly allowed API-based liability | Bader argues instruction merged finished-drug and API theories to convict. | Bader contends the instruction improperly broadened liability beyond the indictment. | Plain error; reversal of Counts 1 and 17; remand for proper basis. |
| Sufficiency of evidence for unlawful HGH distribution under § 333(e) | Government claims the evidence showed illicit uses and marketing of HGH. | Bader asserts insufficient mens rea and that HGH was API, not a finished drug. | Sufficient evidence supported distribution/conspiracy convictions under proper theory. |
| Sufficiency of evidence for conspiracy to distribute testosterone cypionate | Evidence showed an agreement and interdependence to market testosterone for unlawful uses. | Claims lack of clear proof of agreement and knowledge of unlawful purpose. | Evidence sufficient to support conspiracy verdict. |
| Forfeiture: enforceability after reversal of § 545 counts | forfeiture tied to proceeds from HGH offenses; should stand if linked to surviving convictions. | Reversal of § 545 convictions requires reevaluation of forfeiture amount and basis. | Remanded to determine precise forfeiture amount consistent with remaining upheld convictions. |
Key Cases Cited
- United States v. Willis, 476 F.3d 1121 (10th Cir. 2007) (plain-error review standard for jury instructions)
- United States v. Visinaiz, 428 F.3d 1300 (10th Cir. 2005) (instructional errors analyzed for overall correctness)
- United States v. Cooper, 654 F.3d 1104 (10th Cir. 2011) (legal standard for plain-error review on instructions)
- United States v. Gutierrez-Gonzalez, 184 F.3d 1160 (10th Cir. 1999) (government official or agency requirement for estoppel claims)