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United States v. Akinyoyenu

United States District Court, District of Columbia

August 4, 2016



          JAMES E. BOASBERG United States District Judge

         For 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.

         In 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 Dismiss.

         I. Background

         The 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).

         Akinyoyenu 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 - and - operated from January 2005 to June 2010 and offered for sale dozens of medications. Id., ¶¶ 12, 17-18.

         Defendant’s 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.

         One of 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.

         Armed 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).

         Akinyoyenu now moves to dismiss the two CSA counts on the ground that they fail to state criminal offenses.

         II. Legal Standard

         Before 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).

         In 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)).

         III. Analysis

         As is 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.

         This 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:

         (a) Unlawful acts

         Except 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 substance.

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 the Act:

         (h) Offenses involving dispensing of controlled substances ...

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