U.S. v. Stevens

• Decision Date: 23 March 2011
• Docket Number: Case No.: RWT 10cr0694.
• Citation: 771 F.Supp.2d 556
• Parties: UNITED STATES of America,v.Lauren STEVENS, Defendant.
• Court: U.S. District Court — District of Massachusetts

771 F.Supp.2d 556

UNITED STATES of America,

v.Lauren STEVENS, Defendant.

Case No.: RWT 10cr0694.

United States District Court, D. Maryland.

March 23, 2011.

Adrienne Elise Fowler, Patrick Glenn Jasperse, United States Department of Justice, Office of Consumer Litigation, Washington, DC, Cynthia A. Young, Sara Miron Bloom, Office of the United States Attorney, Boston, MA, for Plaintiff.Brien T. O'Connor, Ropes and Gray LLP, Boston, MA, Michelle L. Levin, Steptoe and Johnson LLP, New York, NY, Reid H. Weingarten, Robert Ayers, William Hassler, Steptoe and Johnson LLP, Samantha Barrett Badlam, Colleen A. Conry, Ropes and Gray LLP, Washington, DC, for Defendant.

MEMORANDUM OPINION

ROGER W. TITUS, District Judge.

On November 8, 2010, a grand jury for the United States District Court for the District of Maryland returned a six-Count indictment against Lauren Stevens (“Stevens”), former Vice President and Associate General Counsel of GlaxoSmithKline (“GSK”). The indictment charged Stevens with one count of obstruction of a proceeding in violation of 18 U.S.C. § 1512, one count of falsification and concealment of documents in violation of 18 U.S.C. § 1519, and four counts of making a false statement in violation of 18 U.S.C. § 1001. The charges arose out of Stevens' response to an inquiry by the United States Food and Drug Administration (“FDA”) into GSK's alleged off-label promotion of the anti-depressant drug Wellbutrin SR (“Wellbutrin”). A jury trial is scheduled to begin April 5, 2011. The parties have filed multiple pretrial motions, most of which will be discussed below.

BACKGROUND

On October 9, 2002, the FDA sent a letter to GSK stating that the FDA had recently received information indicating that GSK had possibly promoted Wellbutrin for weight loss, a use not approved by the FDA. Indictment at ¶ 3. The FDA asked GSK to provide it with materials related to Wellbutrin promotional programs sponsored by GSK, including copies of all slides, videos, handouts, and other materials presented or distributed at any GSK program or activity related to Wellbutrin. Id. Stevens was “in charge of” GSK's “response to the FDA's inquiry and investigation” and “led a team of lawyers and paralegals who gathered documents and information.” Id. at ¶ 4.

The United States alleges that Stevens obstructed the FDA's investigation by withholding and concealing documents and other information about GSK's promotional activities for Wellbutrin, including for unapproved uses, while representing to the FDA that she had completed her response to its inquiry, and that Stevens falsified and altered documents in order to impede the FDA's investigation of GSK. Id. at Cts. I & II. In particular, the Government alleges Stevens withheld slide sets used by speakers at GSK promotional events that promoted off-label use of Wellbutrin and withheld information regarding compensation received by attendees at promotional events. Id. at ¶¶ 20, 22, 27, 32, 33, 36. The Government alleges that Stevens signed and sent to the FDA six letters containing materially false statements regarding GSK's promotion of Wellbutrin for off-label uses. Id. at Cts. III–VI.

In responding to the FDA's inquiry, Stevens was assisted by GSK in-house counsel and outside counsel from the law firm of King & Spalding. Stevens' Opposition to United States' Motion to Preclude Advice of Counsel Defense to 18 U.S.C. § 1519, ECF No. 56, at 2. Stevens' primary defense to the charges in the indictment is that she relied in good faith on the advice of counsel in responding to the FDA's inquiry, and that such reliance negated the requisite intent to obstruct the FDA's investigation or to make false statements. Id.

The Government filed two pretrial motions. The first seeks to preclude Stevens from asserting good faith reliance on the advice of counsel as a defense to Count 2. The Government argues that good faith reliance on the advice of counsel is not a defense to Count 2 because 18 U.S.C. § 1519 is a general intent crime, and good faith reliance on advice of counsel is only a defense to specific intent crimes. ECF No. 19 at 6–12. The Government also moved in limine to exclude evidence regarding the opinions of other in-house and outside counsel that were not expressed to Stevens at the time of GSK's response to the FDA's inquiry, regarding whether they viewed GSK's responses to be appropriate and not misleading. ECF No. 36 at 3–4.

Stevens filed eight pretrial motions. Stevens moved to dismiss Count 2 for multiplicity, for failure to state an offense, and for unconstitutional vagueness. ECF Nos. 20, 22, 39. She also moved for disclosure by the Government of the identities of all attorney witnesses the Government intends to identify as her co-conspirators in the obstruction of the FDA investigation. ECF No. 48. Stevens moved in limine to exclude evidence outside the scope of the allegations contained in the indictment, and filed a Motion for a Bill of Particulars, a Motion for Disclosure of the Government's Testimony to the Grand Jury, and a Motion to Compel Discovery and Disclosure of Exculpatory Information. ECF Nos. 23, 25, 38, 47.

On March 17, 2011, a hearing was held and the Court began to hear argument on the parties' pretrial motions.

ANALYSIS

I. Good Faith Reliance on the Advice of Counsel Negates the Specific Intent Required to Violate 18 U.S.C. § 1519.

Good faith reliance on the advice of counsel is only relevant to specific intent crimes because such reliance demonstrates a defendant's lack of the requisite intent to violate the law. United States v. Miller, 658 F.2d 235, 237 (4th Cir.1981) (“The reliance defense ... is designed to refute the government's proof that the defendant intended to commit the offense.”), United States v. Polytarides, 584 F.2d 1350, 1353 (4th Cir.1978) (“The basis for the defense of action taken on the advice of counsel is that, in relying on counsel's advice, defendant lacked the requisite intent to violate the law.”). The United States argues that 18 U.S.C. § 1519 is a general intent crime, and therefore Stevens' good faith reliance on advice of counsel is irrelevant to a determination of her guilt on Count 2.

Whether a conviction under § 1519 requires proof that a defendant acted with the specific intent to violate the law is a question of statutory construction. Staples v. United States, 511 U.S. 600, 604, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994). A close reading of the statutory language reveals that a conviction under § 1519 can only be premised on conduct that was intentional or willful.

Section 1519 provides:

Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.

(emphasis added).

The Supreme Court's decision in Arthur Andersen guides this Court's interpretation of § 1519. In Arthur Andersen LLP v. United States, the Supreme Court interpreted the language of 18 U.S.C. § 1512(b)(2)(A), a similar obstruction statute, which provides, in relevant part:

“Whoever knowingly uses intimidation or physical force, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to ... cause or induce any person to ... withhold testimony, or withhold a record, document, or other object, from an official proceeding [or] alter, destroy, mutilate, or conceal an object with intent to impair the object's integrity or availability for use in an official proceeding ... shall be fined under this title or imprisoned not more than ten years, or both.”

The Court held that the most natural reading of the statute was one in which the word “knowingly” modifies “corruptly persuades.” Id. The Court explained

“[The statute] provides the mens rea—‘knowingly’—and then a list of acts—‘uses intimidation or physical force, threatens, or corruptly persuades.’ We have recognized with regard to similar statutory language that the mens rea at least applies to the acts that immediately follow, if not to other elements down the statutory chain.” Id.

The Supreme Court held that one could not “knowingly ... corruptly persuad[e]” another person with intent to cause that person to withhold documents from, or alter documents for use in, an official proceeding without being “conscious of [his] wrongdoing.” Andersen, 544 U.S. at 705–706, 125 S.Ct. 2129. The Court stated that “limiting criminality to persuaders conscious of their wrongdoing sensibly allows § 1512(b) to reach only those with the level of culpability usually required to impose criminal liability.” Id.

As in Arthur Andersen, the most natural, grammatical reading of § 1512 is one in which the word “knowingly” modifies “with intent to impede, obstruct, or influence.” The mens rea of 1519 is not just “knowingly”—meaning “with awareness, understanding, or consciousness”—as the Government suggests. Id. at 705, 125 S.Ct. 2129. Rather, the mens rea is “knowingly ... with intent to impede, obstruct, or influence,” a mens rea clearly requiring consciousness of wrongdoing. One cannot be said to “knowingly ... alter [ ], ... conceal[ ], cover[ ] up, falsif[y], or make[ ] false entry in any record [or] document ... with intent to impede, obstruct, or influence” an investigation or administration of a matter within the jurisdiction of a federal agency unless it is that individual's intent to do that which is wrongful. As one of our sister courts has held, though the word “corruptly” is not found in § 1519, the same evil intent embodied in § 1512 is embodied in § 1519. United States v. Moyer, 726 F.Supp.2d 498, 506 (...