United States District Court, District of Columbia
E. BOASBERG United States District Judge
many years, Defendant Titilayo Akinyoyenu, a pharmacist, ran
a local drugstore in Washington, D.C. Following the turn of
the century, he set up a website for his business, where he
displayed and sold sundry medications. The Government
criminally charged Defendant in 2015 because one of his
products was Fioricet - a drug that contained butalbital and
was therefore allegedly a controlled substance. The
Indictment included, inter alia, two Controlled
Substances Act offenses relating to the distribution of
Fioricet without a valid prescription.
advance of trial, Akinyoyenu now moves to dismiss both of
these counts. They are legally insufficient, he says, because
the Attorney General has issued a regulation that exempts
Fioricet from a host of the CSA’s requirements,
including its provision that a prescription must precede
distribution. As the Court agrees with Defendant that his CSA
counts do not spell out crimes, it will grant his Motion to
Court gleans its understanding of the case by assuming as
true the facts set forth in the Indictment. See United
States v. Ballestas, 795 F.3d 138, 149 (D.C. Cir. 2015).
was a licensed pharmacist who owned and operated Apex Care
Pharmacy here in Washington. See Indictment, Count
One, ¶¶ 7-8. As the Internet age dawned, Defendant
innovated. He hired a technology firm to design an online
expansion to his brick-and-mortar business. Id.,
¶ 17. The resulting websites - apexonlinepharmacy.com
and bynextday.com - operated from January 2005 to June 2010
and offered for sale dozens of medications. Id.,
¶¶ 12, 17-18.
websites allowed visitors to place orders, but informed them
that all orders would require a valid prescription up front.
Id., ¶ 19. This was not entirely true; in fact,
Akinyoyenu never asked for customers to provide prescriptions
independently. Id., ¶¶ 18-20. Instead,
customers simply filled out an online medical questionnaire
when completing their orders; Defendant then forwarded those
questionnaires to his own affiliated doctors - including
Co-Defendant Alan Saltzman - who, for a fee, summarily
approved the drug orders while issuing
“prescriptions” for those drugs. Id. All
in all, Akinyoyenu’s online storefront grossed over $8
million in sales. Id., ¶ 22.
the drugs he sold was Fioricet - a combination drug
containing acetaminophen, butalbital, and caffeine that is
used to treat tension headaches. Id., Count One,
Overt Acts, ¶¶ 3, 7-9, 13-14, 20; see Opp.
at 3. In the Government’s eyes, Defendant’s
online peddling of Fioricet without a valid prescription
independently ran afoul of two federal drug statutes: the
Federal Food, Drug, and Cosmetic Act and the Controlled
Substances Act. First, under the FDCA, Fioricet requires a
valid prescription because it is unsafe due to its toxicity
or other possibly deleterious effects. See 21 U.S.C.
§ 353(b)(1); see also Indictment, Count One,
¶¶ 2-3, 11-12. Second, under the CSA, because
Fioricet contains butalbital (a derivative of barbituric
acid), it allegedly is a Schedule III controlled substance
and thereby requires a valid prescription. See 21
U.S.C. §§ 812(b)(3), 829(b), 829(e)(1); see
also id. § 812(c), Schedule III(b)(1). The
Government claims that Akinyoyenu’s
order-plus-questionnaire system, with its resulting
rubberstamp prescriptions, violated these restrictions.
See Indictment, Count One, ¶ 21.
with these allegations, the Government indicted Akinyoyenu
and Saltzman in March 2015. The first two counts in the
Indictment listed CSA offenses under 21 U.S.C. §§
841 and 846. In Count One, the Government charged the duo
with conspiring to distribute a controlled substance by
selling a product containing butalbital (Fioricet) “for
other than a legitimate medical purpose and not in the usual
course of professional practice” - that is, without a
valid prescription. Id., ¶ 15. In Count Two,
the Government charged them with conspiring to do the same
through an online pharmacy, as prohibited by a recent
amendment to the CSA that applies specifically to online
pharmacies. Id., Count Two, ¶ 2. The Government
also indicted the pair with conspiring both to dispense drugs
without valid prescriptions in violation of the FDCA (Count
Three) and to commit mail fraud (Count Four).
now moves to dismiss the two CSA counts on the ground that
they fail to state criminal offenses.
trial, a defendant may move to dismiss an indictment on the
basis that it fails to state an offense - i.e., that
“the indictment does not charge a crime against the
United States.” United States v. Cotton, 535
U.S. 625, 631 (2002) (quoting Lamar v. United
States, 240 U.S. 60, 65 (1916)); see Fed. R.
Crim P. 12(b)(3)(B)(v) & 2014 advisory committee notes;
Al Bahlul v. United States, 767 F.3d 1, 10 n.6 (D.C.
Cir. 2014) (“Failure to state an offense is simply
another way of saying there is a defect in the
indictment.”); United States v. Hite, 950
F.Supp.2d 23, 25-26 (D.D.C. 2013) (“Claims that a
statute named in an indictment does not proscribe the alleged
conduct are generally treated as claims that the indictment
‘fails to state an offense.’”) (quoting
United States v. Teh, 535 F.3d 511, 515 (6th Cir.
2008)). The operative question is whether the allegations in
the indictment, if proven, permit a jury to conclude that the
defendant committed the criminal offense as charged. See
United States v. Sanford, Ltd., 859 F.Supp.2d 102, 107
(D.D.C. 2012); United States v. Bowdoin, 770
F.Supp.2d 142, 146 (D.D.C. 2011).
reviewing the indictment, the court affords deference to the
“fundamental role of the grand jury.”
Ballestas, 795 F.3d at 148 (quoting Whitehouse
v. U.S. Dist. Court, 53 F.3d 1349, 1360 (1st Cir.
1995)). As a result, “[a]dherence to the language of
the indictment is essential because the Fifth Amendment
requires that criminal prosecutions be limited to the unique
allegations of the indictments returned by the grand
jury.” United States v. Hitt, 249 F.3d 1010,
1016 (D.C. Cir. 2001). The court accordingly cabins its
analysis to “the face of the indictment and, more
specifically, the language used to charge the crimes.”
United States v. Sunia, 643 F.Supp.2d 51, 60 (D.D.C.
2009) (emphases omitted) (quoting United States v.
Sharpe, 438 F.3d 1257, 1263 (11th Cir. 2006)).
customary, the Court’s analysis begins with the statute
at hand. The CSA is a “comprehensive regime, ”
designed “to conquer drug abuse and to control the
legitimate and illegitimate traffic in controlled
substances.” Gonzales v. Raich, 545 U.S. 1,
12-13 (2005). Its individual Parts are the armatures that
give it form: Part A lays out the Act’s purpose; Part B
defines controlled substances; Part C provides regulatory
requirements for those substances (e.g.,
registering, labeling and packaging, recordkeeping); and
then, when individuals spurn those requirements, Parts D and
E provide criminal- and administrative-enforcement
mechanisms, respectively. See 21 U.S.C. § 801
et seq. In broad brushstrokes, the Act thus makes it
“unlawful to manufacture, distribute, dispense, or
possess any controlled substance” unless an individual
plays within the rules of the CSA’s “closed
regulatory system.” Raich, 545 U.S. at 13.
case hinges on the language of the separate yet similar
statutory provisions in Part D that undergird Counts One and
Two. Count One charges Akinyoyenu with conspiring to commit a
ubiquitous federal drug offense under the Act, which reads:
as authorized by this subchapter, it shall be unlawful
for any person knowingly or intentionally -
(1) to manufacture, distribute, or dispense, or possess with
intent to manufacture, distribute, or dispense, a controlled
21 U.S.C. § 841(a) (emphasis added). Count Two charges
Defendant with a largely equivalent conspiracy offense by
means of the Internet, as prohibited by a 2008 amendment to
Offenses involving dispensing of controlled substances ...