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In March 2012, agents of the FDA executed search warrants at Pharmalogical offices. Thereafter, Gertler and two other attorneys—Peter Tomao representing Scully individually and another lawyer representing Scully’s partner—met with prosecutors. In April 2014, Scully and his partner were indicted on charges of willfully importing foreign versions of pharmaceuticals not approved by the FDA and reselling them in the United States under materially false and fraudulent pretenses. Scully’s partner entered into a cooperation agreement with the government and pled guilty. Scully proceeded to trial, asserting that he lacked the requisite criminal intent because of his good faith reliance on advice from Gertler and Tomao regarding the legality of his conduct. Scully called Gertler to testify, but his testimony was undermined by the government’s evidence that Scully provided Gertler with false or incomplete information. Scully did not call Tomao to testify, but sought to introduce evidence of Tomao’s legal advice through Scully’s own testimony that Tomao had given his oral approval to the transactions. The government objected, and the district court did not permit the evidence, at first ruling that it was hearsay, and then when the defense demonstrated that it was not because it went to Scully’s state of mind, ruling that the evidence’s probative value was outweighed by its risk of unfair prejudice. In so ruling, the court pointed out that Tomao was “readily available” to testify at trial because he generally was “in court every day.” The court’s instructions to the jury on the advice-of-counsel defense stated that the defendant had the “burden of producing evidence” to show that he: (1) sought the advice of counsel honestly and in good faith prior to committing any of the crimes; (2) fully and honestly placed all the facts before his counsel; and (3) followed his counsel’s advice in good faith and honestly believing it to be correct and intending that his actions were lawful. The court explained to the jury that if it found these elements established, the defendant would be acquitted of the crime even if the jury found that the government had proven guilt. On appeal, Sully challenged the district court’s exclusion of evidence regarding Tomao’s legal advice and the instructions to the jury.

For the original version including any supplementary images or video, visit https://www.law.com/newyorklawjournal/2018/04/02/my-lawyer-said-it-was-ok-scully-and-defending-based-on-reliance-on-counsel/

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