United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON DEFENDANT SUNRISE LEE'S
MOTION FOR MISTRIAL
ALLISON D. BURROUGHS, U.S. DISTRICT JUDGE
September 11, 2018, a grand jury returned the Second
Superseding Indictment (“SSI”) against Michael
Babich, Alec Burlakoff, Michael Gurry, Richard Simon, Sunrise
Lee, Joseph Rowan, and John Kapoor, charging them with
engaging in a racketeering conspiracy in violation of 18
U.S.C. § 1962(d). [ECF No. 419]. Trial on the charges
against Defendants Michael Gurry, Richard Simon, Sunrise Lee,
Joseph Rowan, and John Kapoor (collectively,
“Defendants”) began on January 28, 2019. [ECF No.
703]. On March 1, 2019, counsel for Ms. Lee made an oral
motion for a mistrial, which was supplemented by a written
motion (“Motion for Mistrial”). [ECF No. 765].
For the following reasons, which are consistent with the
reasons stated by this Court on March 1, 2019, and again on
March 5, 2019, the Motion for Mistrial is DENIED.
March 1, 2019, during direct examination of witness Alec
Burlakoff, the Government sought to admit a document marked
for identification as Exhibit 664, which was an email
discussing Ms. Lee that was sent to Mr. Babich under a
pseudonym (“Exhibit 664” or “the
Exhibit”). Trial Tr. Mar. 1, 2019, 197:2-10. The email
purported to provide links to websites showing Ms. Lee's
involvement with an escort service. Id. at
197:25-198:2. Counsel for Ms. Lee objected to the admission
of the document and requested a sidebar. Id. at
sidebar, the Government argued that the document was relevant
and “highly probative” because Mr. Babich and Mr.
Burlakoff discussed Exhibit 664, concluded that the
information on Ms. Lee's resume was inconsistent with the
information provided in Exhibit 664, and discussed the
information with Dr. Kapoor. Id. at 197:24-198:9.
Counsel for Ms. Lee argued that Exhibit 664 was “highly
inflammatory, ” “not probative of anything at
all, ” and “meant to slander Ms. Lee.”
Id. at 198:10-12. He added that Mr. Babich had
investigated the email at the time and discovered that the
likely person behind the pseudonym was Ms. Lee's
ex-boyfriend. Id. at 198:15-19. The Court prohibited
Exhibit 664 from being admitted on the ground that it was
inflammatory, id. at 200:5-8, but ruled that the
Government could ask the witness about inaccuracies that may
have been on Ms. Lee's resume and about the corporate
culture at Insys to the extent relevant to Insys'
decision to hire Ms. Lee and reasons why Insys might choose
to hire an individual not qualified for the job, id.
at 199:22-24, 200:2-3.
direct examination resumed, and the Government asked Mr.
Burlakoff, over the Defendants' objection, whether Mr.
Babich had received salacious information about Ms. Lee.
Id. at 200:17-24. The Court struck the
Government's follow-up question about whether Mr. Babich
was provided information that Ms. Lee was running an escort
service and convened a second sidebar. Id. at
201:7-14. At sidebar, the Court provided further
clarification and specifically identified what information
the Government could reference on direct examination as
relevant to the issues being tried and not unduly
prejudicial. See id. at 201:16-23. The Court
reiterated that Exhibit 664 would not be admitted but that
the Government was permitted to question Mr. Burlakoff about
information contained in the Exhibit in light of his earlier
testimony. Id. at 202:20-22.
at sidebar, counsel for Ms. Lee renewed his objection that
the information was not admissible because it was unfairly
prejudicial. Id. at 203:12-15 (“It's a
smear campaign by somebody with a grudge . . . It's not
admissible. It's 403.”), 204:9-12 (stating that any
relevance “does not in any way outweigh the prejudice
to her”). The Government argued that the information
was relevant because it showed notice to executives at Insys
and demonstrated that Ms. Lee was unqualified to hold her
position. Id. at 204:2-8. The Court allowed limited
testimony on the basis of notice but not for the truth and
reiterated the relevance of the testimony. See id.
at 202:22-24; see also 204:15-16 (“If [Insys]
hired her and they keep [Ms. Lee] on because of this skill
set, it's relevant.”), 205:10-14
(“There's no evidence whether it's credible or
not. If they have a discussion about it and . . . whether
it's true or not, Mr. Kapoor says I don't care what
[Ms. Lee] does as long as she can sell my drug, that's
relevant.”); 207:1-5 (providing limiting instruction).
The Court instructed the Government “to keep the
salacious aspect to an absolute minimum.” Id.
Lee's counsel requested a limiting instruction focusing
on the hearsay. Id. at 206:10-12. Once back before
the jury, the Court gave a limiting instruction that strongly
emphasized that the jury should only consider the information
from Exhibit 664 for the effect it may have had on the
company and not for the truth. Id. at 206:16-207:21.
The Court offered to renew the instruction at the request of
counsel if it became necessary during the course of the
testimony. Id. at 207:14-15.
Burlakoff went on to testify that he met Ms. Lee in a strip
club where she worked; that Mr. Babich told him about an
email he received about Ms. Lee; and that he, Mr. Babich, and
Ms. Lee investigated the email and concluded that it came
from Ms. Lee's ex-fiancé. Id. at
207:23-208:15. Mr. Burlakoff agreed that the email made
disparaging remarks about Ms. Lee, questioned her hiring, and
provided the websites identified in the email for Mr. Babich
to review. Id. at 208:19-209:5. Mr. Burlakoff
explained that, at Mr. Babich's instruction, he visited
one of the websites and observed topless photos of Ms. Lee.
Id. at 209:11-210:1. Finally, Mr. Burlakoff
testified that Mr. Babich brought this information to Dr.
Kapoor, who allowed Ms. Lee to remain at Insys because of her
success to-date but required that she take the photos down.
Id. at 210:3-22.
conclusion of direct examination for the day, counsel for Ms.
Lee moved for a mistrial “based on admission of the
salacious evidence.” Id. at 218:12-17.
Specifically, counsel for Ms. Lee argued that admission of
the evidence “was done for the purpose of prejudicing
[Lee]” and “was the subject of pretrial motions
in limine and a motion for severance.”
Id. at 218:14-16. Further, he stated that he did not
believe that the evidence would have been admitted if Ms. Lee
was on trial by herself, rather than being trial along with
four other defendants. Id. at 218:16-17.
Court denied the motion from the bench, but granted leave to
renew the motion in writing. Id. at 218:20-22. In
denying the oral motion from the bench, the Court stated:
The company's response to [the] information [in the
e-mail] is relevant. It may well come in if [Ms. Lee] was
tried alone because her qualifications for the job would also
be at issue. . . . I think the way we handled it, the
information came in in as unprejudicial a way as was
warranted. So I thought that I tried to keep the inflammatory
part of it down.
Id. at 218:23-219:5.
for Ms. Lee submitted the pending Motion for Mistrial on
March 3, 2019, which raised the issue of propensity evidence
for the first time. [ECF No. 765]. After reviewing the
briefing submitted, the Court again denied the request for a
mistrial on March 5, 2019 and offered to give an instruction
on propensity evidence. Trial Tr. Mar. 5, 2019, 24:3-6. The
Court consulted with Defendants' counsel about the
content and timing of the instruction. Id. at 24:7-
25:4. The Court gave the jury an instruction before trial