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United States v. Akinyoyenu

United States District Court, District of Columbia

August 23, 2016



          JAMES E. BOASBERG United States District Judge.

         Defendant 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.

         As one 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 Defendant’s Motion.

         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 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 - 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. Specifically, the websites stated: 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.

         Displeased 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.

         Defendant now moves to dismiss this last count on the ground that it fails to state an offense.

         II. Legal Standard

         Before 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).

         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 ...

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