United States District Court, District of Columbia
E. BOASBERG United States District Judge.
Titilayo Akinyoyenu once ran a pharmacy in Washington, D.C.,
and, for some time, another one online. His internet agora
allowed customers to purchase a melange of medications.
Customers, however, did not need to submit their own
prescriptions when ordering; instead, they filled out short
medical questionnaires, which Akinyoyenu’s network of
doctors - including Co-Defendant Alan Saltzman - reviewed
summarily before prescribing the drugs sought in the orders.
In 2015, a grand jury returned an Indictment charging
Defendant with several drug-related offenses and, as relevant
here, conspiracy to commit mail fraud.
of several pretrial motions to dismiss, Akinyoyenu now
asserts that his mail-fraud count fails to state an offense
because he did not deprive anybody of money or property. By
his theory, customers received the drugs they ordered at the
price they agreed to pay, so they lost nothing. Because this
cabined view of mail fraud misunderstands the nature of that
offense, the Court will, for the most part, deny
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 pharmacist who owned and operated Apex Care Pharmacy
here in Washington. See Indictment, Count One,
¶ 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,
websites allowed visitors to place orders, but informed them
that all orders would require a valid prescription up front.
Id., ¶ 19. Specifically, the websites stated:
apexonlinpharamacy.com does not prescribe medication
directly. The physician has the ultimate authority to
diagnose a medical condition and/or offer a treatment option.
All orders require a prescription from your doctor or other
health care professional that is licensed in the United
States to write prescriptions for medicine.
Id. This was not entirely true - for a few reasons.
To start, Akinyoyenu never required customers to provide
their own prescriptions. Id., ¶¶ 18-20.
Defendant also did offer prescription services
directly. Customers would fill out an online medical
questionnaire when completing their orders; Defendant then
forwarded those questionnaires to his affiliated doctors -
e.g., Saltzman - who, for a fee, summarily approved
the drug orders while issuing prescriptions for those drugs.
Id. And finally, by requiring a prescription in the
first place, Akinyoyenu implied that these rubberstamp
prescriptions were somehow sound and legal stand-ins (or
never told customers otherwise). Id., ¶¶
18-21. All in all, he reaped over $8 million in sales by
selling and shipping drugs. Id., ¶ 22.
with these unscrupulous dealings, the Government indicted
Akinyoyenu and Saltzman in March 2015. The Indictment listed
three drug offenses as well as a fourth charge of mail-fraud
conspiracy. As to the last, the pair allegedly engaged in a
“scheme to defraud online drug customers, and federal
and state regulatory agencies, ” of money or property
by making false representations in these prescription-drug
sales. Id., Count Four, ¶ 2.
now moves to dismiss this last count on the ground that it
fails to state an offense.
trial, a defendant may move to dismiss an indictment (or
specific counts) 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.”). 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