A week into a multicount trial, federal prosecutors dismissed charges yesterday against a Chicago man who allegedly took part in an Internet pharmacy drug scheme with roots in Dorchester, after a judge found gross incompetence in the handling and destruction of evidence.
The charges against Andrew Berke were dismissed in Boston after US District Court Judge Richard G. Stearns said earlier in the day that he was ready to drop them on his own, finding that the evidence destroyed was “apparently exculpatory’’ and irreplaceable. Prosecutors soon after filed the one-page notice of dismissal.
Berke, who ran Freight Savers Express, a Chicago-based company authorized to deliver DHL Express packages, could have faced decades in prison if convicted of distributing prescription drugs that were sold over the Internet. He was also charged with conspiracy to misbrand drugs and conspiracy to commit international money laundering.
Prosecutors would only say in a court filing that the “dismissal is in the interests of justice.’’ A spokeswoman for the US attorney’s office could not comment further because a trial against a codefendant is ongoing.
A lawyer for Berke, Daniel J. Cloherty, of Boston, would not comment on the dismissal. Cloherty is asking the court if he can remain on the case as a lawyer for Berke’s codefendant, Gladys Ihenacho, a nurse from Boston who ran a pharmacy with her husband in Dorchester.
The case had been several years in the making, and spawned from an investigation into illegal Internet pharmacies in Tennessee in 2007. Prosecutors alleged that the Dorchester pharmacy, Meetinghouse Community Pharmacy, served as a distribution base for Internet pharmacy sites run out of the Dominican Republic. Such Internet sites have been under scrutiny for selling phony prescriptions without proper doctor approval.
Berke allegedly distributed the prescription drugs to customers knowing his revenue was coming from an illegal scheme set up by the Dominican companies.
But an investigator in Tennessee destroyed evidence that helped to trigger the initial federal inquiry, and subsequent charges, against Berke and Meetinghouse Community Pharmacy. Prosecutors in Massachusetts, according to court records, failed to properly disclose that information to defense lawyers when the prosecutors learned of the destruction a month ago.
Defense lawyers only learned of the destroying of evidence last week, after the trial began, when a former law enforcement officer with the Tennessee Bureau of Investigation acknowledged during questioning that he wiped his computer clean, deleting notes from his investigation, when he left his agency in 2008.
The officer, Corey Graves, now works for the Secret Service. He told prosecutors in December that he had wiped the computer clean, deleting notes of conversations with other investigators, a cooperating witness in the case, and Berke’s lawyers, according to court records.
Assistant US Attorney Mary Elizabeth Carmody had argued in court documents that the information destroyed was not pivotal to the case, and that some of the information from Tennessee had been turned over to defense lawyers.
But the defense lawyers contended that the problem “is not what was produced to the defendants in this case - it was what was not produced.’’
They said that some of the materials destroyed were exculpatory because they would have shown that Berke and his lawyers had communicated with investigators in Tennessee, contrary to prosecutors’ arguments that he had been uncooperative and engaged in a conspiracy to hide what he was doing. Prosecutors had said that Berke was uncooperative during opening statements to the jury.
Cloherty also contended that prosecutors were misleading to defense lawyers last month when they said that Tennessee investigators turned over all information they possessed, without disclosing that other information had been destroyed.
“There is no plausible excuse for these records - records which are necessarily exculpatory as to Mr. Berke - to have been discarded by law enforcement,’’ Cloherty said in court documents.
He said in a separate court filing, “it is likely that Mr. Berke would not be on trial at all if that information . . . had not been destroyed.’’
Robert A. George, a lawyer for Ihenacho, had also asked that charges against his client be dismissed because evidence in her case was deleted, but the request was rejected. The judge did not explain, only saying that in Berke’s case the evidence was irreplaceable, one of the standards for dismissing a case.
Ihenacho faces more than 20 years in prison if convicted. Her trial will resume today.
Her husband, Baldwin Ihenacho, pleaded guilty and will be sentenced next month. He is expected to testify as a defense witness on behalf of his wife. Several people who ran the Internet sites from the Dominican Republic have also been charged but remain at large.Milton Valencia can be reached at firstname.lastname@example.org.