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Law360 (November 12, 2020, 10:38 PM EST) -- A former Insys executive who was convicted in a scheme to bribe doctors to prescribe opioids and who testified against his former colleagues asked a Massachusetts federal judge for another continuance of his prison sentence due to COVID-19, joining four of the executives he testified against who recently made similar requests.
Michael Babich asked the court to delay the start of his 2½-year prison sentence until Feb. 2 due to the danger of being locked up during the pandemic, noting that the court already granted him five continuances due to the coronavirus. He and the others are due to start serving their sentences Nov. 30.
"The ongoing pandemic does not appear to be lessening," Babich said before citing a Washington Post article that said the number of new COVID-19 cases identified in a single day across the United States has repeatedly broken records in recent days.
Babich's convicted former colleagues, including Insys Therapeutics Inc. founder John Kapoor and executives Michael Gurry, Richard M. Simon and Joseph A. Rowan, earlier this month also petitioned the court for continuances until Feb. 2 due to COVID-19. Babich, the former CEO of Insys, flipped on his former colleagues at the trial and testified against them.
Babich told the court the facility where he has been designated — FPI Safford in Arizona — "recently reported multiple current COVID cases for inmates and staff," and the state of Arizona is also reporting record-high new COVID-19 cases.
"At the same time, the Bureau of Prisons reports more than 19,000 inmates have tested positive for COVID-19," Babich said.
Prosecutors accused the Insys higher-ups of a scheme to bribe doctors to prescribe a powerful opioid.
Kapoor, Gurry, Simon and Rowan were convicted in May 2019 along with Sunrise Lee and received sentences from 1 to 5½ years in prison. Lee previously received continuances on her surrender date and like the others is scheduled to begin serving her sentence on Nov. 30 but does not appear to have filed another motion for continuance as of Thursday.
Babich, despite being a key witness in the government's case, was sentenced to 2½ years in January for his role in the opioid bribery scheme — longer than two former colleagues who were convicted at trial.
On Nov. 2, Kapoor asked the court to delay the start of his 5½-year prison sentence, saying that previous coronavirus-related extensions already having been granted and the pandemic worse than ever, now is not the time to lock the 77-year-old up. With underlying conditions including hypertension, difficulty breathing and chest pain and the existence of an abnormal EKG in the past year, Kapoor said he should be granted another extension.
The court has not ruled on Kapoor's motion for a continuance or the other defendants' motions.
The U.S. Attorney's Office for the District of Massachusetts declined to comment. Counsel for Babich did not immediately respond to a request for comment.
Babich is represented by William H. Kettlewell of Hogan Lovells.
The government is represented by K. Nathaniel Yeager of the U.S. Attorney's Office for the District of Massachusetts.
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.
--Additional reporting by Chris Villani. Editing by Breda Lund.
For a reprint of this article, please contact reprints@law360.com.
