Aloe vera trial ends in deadlock

Jury can't agree on fraud charges against T-UP

Grower acquitted

Defense said client believed in product as AIDS, cancer cure

June 16, 2000|By Gail Gibson | Gail Gibson,SUN STAFF

One of the country's largest criminal cases targeting alternative medicine ended yesterday with jurors deadlocked over charges that a Baltimore businessman fraudulently sold people aloe vera as a treatment for cancer and AIDS.

In another setback to federal prosecutors, the jury acquitted a second defendant, the Oklahoma man whose company grew and processed the aloe vera used in the treatment and who also faced fraud charges.

After deliberating nearly 30 hours over six days, the jury reached a unanimous verdict on only one of the charges in the 20-count indictment against Allen J. Hoffman and his Baltimore-based company, T-UP Inc. The jury found Hoffman not guilty on one count of mail fraud.

Most of the 12 jurors wanted to convict Hoffman on the other charges. But one juror, convinced the government had not proven its case, deadlocked the group - essentially sending the case back to square one after a two-month-long trial.

Assistant U.S. Attorney Virginia B. Evans said last night that the government would retry the case against Hoffman. But defense attorneys sounded confident that federal prosecutors could not win a conviction.

"To God be the glory," said attorney Michael Marr, who represented Hoffman. "The reason this man is free today is because God loves him."

Attorney Russell Duncan, who represented Odus Hennessee, the aloe farmer who was cleared, said the government "just did not prove their case" against either man.

During the trial, federal prosecutors had argued that Hoffman preyed on terminally ill people's desperate search for a cure. The patients turned to Hoffman's aloe vera product, called T-UP, which was sold as a juice or bottled for intravenous use and promoted through brochures titled "Boost Your Immune" and in audio tapes such as "There is Hope: You Do Not Have To Die."

Hoffman was charged with mail and wire fraud and with introducing an untested, unapproved new drug. But defense attorneys argued that Hoffman had not committed fraud because he truly believed aloe vera could improve the health of even the sickest people.

And they said the product was never marketed as a new drug. They said Hoffman only promoted T-UP as a nutritional supplement. The distinction is important - aloe vera can be legally sold as a supplement, and the Dietary Supplements Health and Safety Act passed by Congress in 1994 largely exempted the multibillion-dollar dietary supplement industry from the same scrutiny the U.S. Food and Drug Administration requires of pharmaceutical drugs.

Since then, the herbal and alternative medicine industry has grown steadily, fueled by rising frustration toward traditional medicine and the urgent hopes of people facing diseases that traditional medicine has not cured.

In the trial's closing arguments, prosecutors told jurors that the case wasn't a referendum on alternative medicine. But a spokesman for Hoffman's business partner said yesterday that the verdicts, though mixed, were a clear win.

"We consider the verdict a victory, not only for Hoffman, but more importantly for alternative medicine, for alternative cancer treatment and those who choose to go around the FDA's hammerlock on patient choice," said Levi Rabinowitz, a spokesman for Neil Deoul, a financial partner in T-UP. Deoul did not face criminal charges, but with Hoffman, he has been ordered to pay a $3.7 million fine in a separate state consumer fraud case against T-UP. They are appealing that finding.

Richard Mosley, the juror who argued against convicting Hoffman, said in an interview last night that the government had not proven its case against Hoffman beyond a reasonable doubt.

Deliberations over the past days were tense, Mosley said, as other jurors pressured him to change his position. In a note he sent to presiding U.S. District Judge William M. Nickerson early yesterday, Mosley said other jurors had suggested he was ignorant, lacked common sense or had an ax to grind with the government.

"I believe that they just didn't recognize that I could come to a different conclusion than they did," said Mosley, who once worked as a pre-trial investigator in Baltimore's city courts system.

Other jurors yesterday declined to comment on the case as they left the federal courthouse in downtown Baltimore.

Evans, the federal prosecutor, said the government would continue to pursue its case against Hoffman, whom they portrayed as a wily businessman more intent on making money than making people well. Investigators said Hoffman's company took in $2.3 million from 1996 to 1998, selling T-UP to more than 3,000 people.

The criminal case focused on a small number of people who were treated with intravenous injections of aloe, a procedure that the FDA has not approved for humans. The one conviction prosecutors have in the case was against Donald L. MacNay, a Manassas, Va., doctor who performed the injections and who pleaded guilty in March to federal mail fraud charges and to promoting an unapproved new drug.

Hoffman said yesterday he planned to continue studying the health benefits of aloe vera, though he said he would likely pursue his business overseas.

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