By Chris Villani

Law360 (September 8, 2020, 5:07 PM EDT) -- A pair of convicted Insys Therapeutics Inc. executives asked a federal judge Tuesday to delay the start of their prison terms until after the new year, citing the risk of contracting COVID-19 and a desire by one to be home for the holidays.

Michael Gurry and Sunrise Lee, two of the five Insys higher-ups who were convicted in a scheme to bribe doctors to prescribe the company's expensive opioid spray, asked U.S. District Judge Allison D. Burroughs to delay the start of their prison terms for the fifth time, from Sept. 22 to Jan. 5, 2021. Judge Burroughs sentenced Gurry to 33 months in prison and Lee to a year.

Federal prosecutors said they would agree to pushing the report dates back to Nov. 30, but no further, according to a joint motion filed by Gurry and Lee. In a separate filing, the government agreed to delay the start of the prison terms of Insys founder John Kapoor and former vice presidents Rich Simon and Joe Rowan until Nov. 30.

But Gurry and Lee asked the judge to push their terms back even further, pointing to outbreaks of COVID-19 in the facilities where they are slated to serve their time.

Gurry has been designated to report to a minimum-security camp in Jesup, Georgia, and Lee is to report to the Federal Medical Center in Lexington, Kentucky.

The filing, citing U.S. Bureau of Prisons data, said 278 inmates and staff at the Georgia facility had tested positive for COVID-19 as of Sept. 7, including 19 staff members who "continue to have active infections." All the positive tests were reported after July 4, according to the filing.

The Kentucky facility, meanwhile, "has had one of the highest COVID-19 inmate populations of any BOP facility in the country and has experienced eight deaths," the document adds.

Gurry, 56, and Lee, 40, both suffer from asthma, the motion says, which increases the chance of serious complications should they contract the disease caused by the novel coronavirus. Lee has also been found to have PTSD, she said.

Lee also wishes to be home for the holiday school break with her 13 year-old son, the filing said.

"Given the length of Ms. Lee's sentence, it is likely that if she were to report on January 5, 2021, she will be released prior to the holiday school breaks in November and December of 2021, allowing her to spend both school breaks with her son," the motion states.

Gurry, a former vice president of the now-bankrupt company, ran a call center at Insys. Prosecutors said he directed employees to lie to insurance companies about patient diagnoses so insurers would cover the expensive fentanyl spray Subsys even when it was prescribed off-label.

Kapoor received the longest prison term, five-and-a-half years, and Simon and Rowan were sentenced to 33 and 27 months in prison. All are appealing their convictions to the First Circuit. In March, Judge Burroughs ruled that they could not wait for that appeal to play out before reporting to prison.

Michael Babich, the former Insys CEO who flipped on his colleagues and testified at their trial, made his own assented-to motion Tuesday to delay the start of his 30-month prison term to Nov. 30. A jury found Kapoor, Gurry, Lee, Simon, and Rowan guilty of racketeering charges in May 2019.

A spokeswoman for the U.S. Attorney's Office declined comment. Attorneys for Gurry and Lee did not respond to comment requests Tuesday.

The government is represented by Fred M. Wyshak Jr., K. Nathaniel Yeager and David G. Lazarus of the U.S. Attorney's Office for the District of Massachusetts.

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 Orkand Siddall 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 Peter Rozovsky.

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