Indicted Glaxo Lawyer Moves to Dismiss False Evidence Charges, Citing Due Process Rights

When former GlaxoSmithKline Plc associate general counsel Laura Stevens was indicted last November for allegedly misleading the Food and Drug Administration in its false marketing probe of Glaxo, questions quickly arose about appropriate conduct for in-house lawyers. The criminal case, filed in Maryland federal district court, seemed to highlight the government’s extremely tough standard for corporate legal departments.

Assistant Attorney General Lanny Breuer underlined that point in a speech he delivered last month at a conference of corporate counsel. “If we find credible evidence of criminal conduct — by corporate executives or the lawyers and accountants who advise them — we will not hesitate to charge it,” Breuer said.

But in a Feb. 4 motion to dismiss some of the charges against Stevens, her lawyers at Steptoe & Johnson and Ropes & Gray say it’s the government — and not the former Glaxo lawyer — that’s out of line. Stevens’ lawyers contend that prosecutors violated her due process rights in charging Stevens with concealing and falsifying documents to influence a federal agency. (She was also charged with obstruction of justice and making false statements to the FDA.) And if prosecutors apply the Stevens standard broadly, they argue, they’re opening the floodgates for obstruction charges against lawyers just trying to do their jobs.

The charges against Stevens arose from the FDA’s 2002 inquiry into Glaxo’s alleged marketing of the antidepressant Wellbutrin for weight loss purposes. According to the indictment (pdf), Stevens sent the FDA several letters that falsely denied Glaxo was marketing the drug for off-label uses, even though she knew the company sponsored programs and paid doctors to promote tWellbutrin for weight loss. Prosecutors also alleged that Stevens failed to turn over evidence the FDA requested and falsified documents she sent to the agency.

Her lawyers assert, however, that the falsified evidence charge is “unconstitutionally vague” because Stevens received no fair warning of criminal conduct.

“The government argues that it may convict a defendant of obstruction of justice under section 1519 [destruction, alteration, or falsification of records in federal investigations and bankruptcy] without proving that the defendant possessed a specific, wrongful intent,” Stevens’ lawyers wrote. “This interpretation of section 1519 fails to provide fair warning to a criminal defendant, in violation of the Due Process Clause. Indeed, the government’s position has been considered and rejected by courts that each have explicitly held that section 1519 contains a specific, wrongful intent requirement.”

Prosecuting Stevens without alleging wrongful intent, her lawyers assert, would criminalize innocent conduct — particularly because the government has not specified what evidence Stevens allegedly tampered with. Stevens’ lawyers say it appears that the government is seeking to convict Stevens for revising draft documents created by Glaxo’s legal team before they were sent to the FDA. And that, they argue, would open a big, fat can of worms.

“The government in effect seeks to prosecute Ms. Stevens under a theory that — if consistently applied — would mean that every time a lawyers asserts a claim of privilege and knowingly ‘conceals’ from the government documents believed to be privileged, he would commit obstruction,” the motion to dismiss says. “This would be so regardless of whether the attorney acted in goodfaith while believing the documents were properly withheld.”

At the very least, Stevens’ lawyers argue, the court must require the government to prove that she acted with specific, wrongful intent.

We called the lawyers on the brief, Reid Weingarten of Steptoe & Johnson and Brien O’Connor of Ropes & Gray, but did not hear back.