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Case Number: 2:19-cr-00717
Judge: Gerald A. McHugh
Court: United States District Court for the Eastern District of Pennsylvania (Philadelphia County)
Plaintiff's Attorney: United States Attorney’s Office in Philadelphia
Description: Philadelphia, Pennsylvania criminal defense lawyer represented Defendant charged with selling misbranded drugs online and obstruction of justice.
The chemical 2,4-Dinitrophenol (“DNP”) has a variety of industrial and commercial uses, such as herbicides, dyes, and wood preservatives. In the 1930s, before federal law required drugs to be proven safe before they were marketed, DNP was used as a weight-loss drug despite significant adverse side effects, including dehydration, cataracts, liver damage, and death. Owing to DNP’s toxicity, the U.S. Food and Drug Administration (“FDA”) has never approved DNP for human consumption.
A year-long investigation by the FDA revealed that Merlino, a retired physician, packaged and sold DNP for human consumption as a weight-loss drug, and that he used Twitter to advertise, eBay to sell, and email to communicate with customers in the U.S., Canada, and the U.K. Merlino operated his online business out of his home from at least November 2017 until March 2019, and earned approximately $54,000 from his sales of DNP to hundreds of customers. A search warrant executed at the defendant's residence recovered bulk DNP, packaging and encapsulating materials, and a pill press.
In December 2019, Merlino was charged with one count of introduction of misbranded drugs into interstate commerce in connection with operating his illegal business, and in August of 2021, while under indictment and awaiting trial on the misbranding charge, he faked a diagnosis of pancreatic cancer in order to avoid trial. Based on forged medical records and doctor’s letters submitted to the court, Merlino’s trial was delayed several months. When the obstruction was discovered in January 2022, he was charged with obstructing justice and detained.
In August 2022, Merlino was convicted at trial of the misbranding charge, and subsequently pleaded guilty to the obstruction charge in January 2023. During the trial, a witness from the shipping service the defendant used to ship the drug to customers testified that they referred to Merlino among their colleagues as “the yellow man,” owing to the fact that every time he would bring in a package to ship, they would see yellow dust from the chemical on his skin, nails, and clothes. At sentencing, the government presented evidence that a customer in the U.K. died of DNP toxicity after ingesting pills he purchased from Merlino, who knew that DNP was toxic to humans and illegal to market as a drug.
“Misbranding and selling a toxic chemical not fit for human consumption as a diet drug places the public at grave and obvious risk,” said U.S. Attorney Romero. “The defendant’s deliberate, dangerous, and deceptive conduct in this case was egregious, and resulted in the tragic loss of a life. His faking having cancer to avoid accountability in our justice system only underscores his shocking contempt for the law.”
“Distributing unapproved and potentially toxic drugs under false labeling and in a deliberate attempt to avoid regulatory scrutiny endangers consumers who are in many cases desperate for treatment,” said Special Agent in Charge George A. Scavdis, FDA Office of Criminal Investigations Metro Washington Field Office. “The fact a medical professional was involved makes the situation ever more troubling. We will continue to pursue and bring to justice those who jeopardize the public health.”
The cases were investigated by the U.S. Food & Drug Administration Office of Criminal Investigations, U. S. Postal Inspection Service, and Homeland Security Investigations (“HSI”) Atlantic City under the HSI Newark office and are being prosecuted by Assistant United States Attorney Joan Burnes.
Outcome: Defendant was sentenced to thirty-three months in prison, followed by one year of supervised release.