Just As We Said He Would, Mr. Shkreli Loses On His Other Pre-Trial Motions…

The able Judge Kiyo A. Matsumoto, sitting in Brooklyn’s US District courthouse, published her memorandum opinion overnight, supporting her denial of essentially all the remaining pre-trial requests Mr. Shkreli had made.

She left one for decision, likely at trial time, if Mr Brafman can make a newly-particularized showing that the government is not complying with the Jencks Act. Other than that, he’s out of “delaying” ammo — and on to trial.

Here is the full 27 page PDF of her reasoning — but it is solidly sound. No plausible grounds for appeal, in any of it. Here’s a bit I quite thoroughly enjoyed:

“…As stated above, Mr. Shkreli did not have a reasonable expectation of privacy in the records searched and produced by Retrophin. The court, therefore, need not reach the issue of whether Retrophin acted as a government agent in responding to the subpoena because, even if it had, there would be no Fourth Amendment violation. The production of files in a corporation’s possession and control in response to a valid government subpoena, without more, is not corporate conduct governed or barred by the Fourth Amendment. This is particularly true where, as here, the subpoenas in question request only documents pertaining to the corporation being served, and where the defendant has conceded that the party responding to the subpoena only provided what it “saw fit” to produce. (Id.) Nor does corporate compliance with a government subpoena transform the complying entity into a government agent. In addition, the Constitution does not forbid the government from meeting with a purported victim of an offense.

Relatedly, Mr. Shkreli requests that the government turn over communications between the government and Retrophin, and requests a hearing on that relationship, (Shkreli Br. at 10-11.), but he fails to provide a sufficient factual basis to warrant the hearing he seeks. As the court finds that there was no Fourth Amendment search on other grounds, there is no need for such production or a hearing, which is likely to be an unnecessary fishing expedition. See, e.g., United States v. Ciriaco, 121 F. App’x 907, 909 (2d Cir. 2005)…. 

[Finally, to] the extent Mr. Shkreli is seeking statements or reports by government witnesses in the government’s possession, the Jencks Act, 18 U.S.C. § 3500, prescribes the government’s disclosure obligations. District courts are not authorized to order the pre-trial disclosure of such statements in contravention of § 3500….

For the foregoing reasons, Mr. Shkreli’s Motion to Suppress is DENIED and his requests for a hearing and for production of emails between the government and Retrophin are DENIED AS MOOT. His Motion for Prompt Production of Brady Materials is DENIED WITHOUT PREJUDICE….”

Now you know — and Mr. Shkreli is just flat out of runway. Trial (and his inevitable convictions) now loom.

Smile.