[150616.EN.BIZ] US Prosecutors Run Into Judge Who Insists On Proof Of Knowing Malfeasance

FEDERAL prosecutors, long accustomed to courtroom victory, have run into a judge who demand they show that FedEx knowingly broke the law by delivering drugs to its customers.

That is, prove that FedEx knew of the illegal drugs and intended them to be distributed illegally, reports Bloomberg.

US District Judge Charles Breyer told impatient prosecutors to first prove FedEx schemed with online pharmacies to ship painkillers, anxiety meds and diet pills without valid prescriptions.

And only then detail how the drugs were delivered, encouraging jurors to think such activity was in itself illegal when it was not.

Judge Breyer, who peppered his San Francisco court with witticisms and sarcasm, scorned prosecutors, asking why they did not charge the US Postal Service for doing the same thing.

While drugstore chains and companies including United Parcel Service (UPS) chose not to fight but pay up after Department of Justice allegations, FedEx, facing fines of US$1.6 billion for conspiracy and money laundering, decided to fight.

While prescription deliveries account for only a small part of FedEx's $47.5 billion revenue, it argues it's the government's job to let it know which pharmacies operate illegally.

"And if not," remarked Judge Breyer, "the case is terminated from the court's point of view. I don't know how they can be charged with the knowledge, as a matter of law, that the prescription was invalid."

FedEx denies the allegations, arguing doctors and pharmacies are the ones responsible for illegal prescriptions. The company told the court it transported packages only from licensed pharmacies registered with the US Drug Enforcement Agency.

FedEx has asked the DEA for a list of illegal online pharmacies and stands ready to cut off their service, said Patrick Fitzgerald, a company spokesman. But the government has not provided a list.

"We view the whole concept of wrongdoing by FedEx as absurd," he said. "We're a transportation company but we're not law enforcement."

While the government isn't aiming to imprison anyone at FedEx, it's "trying to make the point that we can't just pretend that illegal drugs aren't being shipped," said William Portanova, a former federal prosecutor.

UPS agreed in 2013 to forfeit $40 million in payments from illicit online pharmacies under a non-prosecution agreement with the US Justice Department.

Walgreen Co and CVS Caremark Corp have paid a combined total of more than $150 million in civil fines over claims they sold medications knowing they weren't for legitimate medical use.

Said Mr Portanova: Obligating delivery services to "sniff out what's happening with their packages" might be too much to ask.

"In a way it's like prosecuting the post office for delivering mail," he said.

Source : HKSG.