U.S. v. Brown

• Decision Date: 18 December 2008
• Docket Number: No. 05-20997.,05-20997.
• Citation: 553 F.3d 768
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Andre Dion BROWN; Otukayode Adeleke Otufale; Chicha Kazembe Combs; John David Wiley, III; Anthony Dwayne Essett, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

553 F.3d 768

UNITED STATES of America, Plaintiff-Appellee, v. Andre Dion BROWN; Otukayode Adeleke Otufale; Chicha Kazembe Combs; John David Wiley, III; Anthony Dwayne Essett, Defendants-Appellants.

No. 05-20997.

United States Court of Appeals, Fifth Circuit.

December 18, 2008.

Julia Bowen Stern (argued), James Lee Turner, Asst. U.S. Attys., Houston, TX, for U.S.

Daucie Elana Shefman, Shefman Law Group, for Andre Dion Brown.

Gerald Robert Fry (argued), Houston, TX, for Otufale.

Michael M. Essmyer (argued), Essmyer, Tritico & Rainey, Houston, TX, Andrew L. Jefferson, Jr., Houston, TX, for Combs.

George McCall Secrest, Jr. (argued), Bennett & Secrest, Houston, TX, for Wiley.

David P. Cunningham (argued), Houston, TX, for Essett.

Appeal from the United States District Court for the Southern District of Texas.

Before HIGGINBOTHAM, DAVIS and BARKSDALE, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

The appellants were pharmacists who were convicted of illegally conspiring with doctors to distribute large quantities of medicines under cover of false prescriptions written by the doctors.

A hung jury ended their first trial. In a second trial the appellants were convicted of the charged crimes. All defendants timely appealed.

I. BACKGROUND AND FACTS

In 2002, a Texas doctor, Dr. Callie Herpin, then working at a pediatrics clinic, met Isaac Achobe, who owned and operated a pharmacy in her building. Herpin had grown tired of the rigors of practice, and Achobe suggested that Herpin open a "pain management" clinic. Such clinics are enterprises specializing in the distribution of powerful pain killers and related drugs. Some clinics operate within the bounds of the law and serve a valuable medical purpose, but others flood the streets with dangerous, addictive narcotics while preserving some trappings of lawful medical practice. Hydrocodone, one of the drugs at issue in this case, is one such narcotic.¹ The other drug at issue, promethazine with codeine, is a strong medicinal syrup, often consumed in combination with alcohol and other substances.² The Houston area is a hot-spot for the distribution and consumption of these narcotics.

In his conversation with Herpin, Achobe referred her to Drs. Peters and Gbanaador, who ran "pain management" clinics. Achobe gave other advice about running a pain management practice and assured her that he could send "patients" to her. Herpin opened her practice, C.H. Medical Consultants, in Houston, in September 2002. Many of Herpin's "patients" were drug dealers and addicts who would purchase non-medically-indicated prescriptions³ from her and have them filled at pharmacies such as those run by appellants. They could then consume the drugs or resell them on the streets for significant mark-ups. Herpin soon went from writing a couple of fraudulent prescriptions ("scripts") for each of her patients to selling long lists of fictitious patient names with corresponding prescriptions. In short, Herpin ran what is referred to as a "script mill."

Herpin testified as a government witness, having pled to drug violations as well as to large-scale, unrelated Medicare fraud. Etta Williams, who also testified for the government pursuant to a plea agreement,⁴ started as a "patient" of Herpin's, buying illicit prescriptions in her own name and in the names of family members. She was eventually hired by Herpin and played a large role in developing the script mill at C.H. Medical Consultants, beginning in early 2003. Another government witness, Tresy Eze, also started as a drug dealing "patient" of Herpin but then came to work at Herpin's front desk, and to take care of Herpin's baby. At the height of their activities, Herpin and her staff used phone books and computer data manipulation to generate lists of names for prescriptions.⁵ Records suggest that Herpin's clinic generated up to twenty-five thousand dollars a day, in cash, in revenue from prescriptions.

In January 2003, Herpin came to the attention of the Drug Enforcement Agency's diversion unit, which investigates the diversion of licit substances into illicit markets. Undercover law enforcement officers purchased illegitimate prescriptions from Herpin over a three month period and had the prescriptions filled at the pharmacy of appellant Otukayode Otufale. Based on these controlled purchases, DEA obtained search warrants for Herpin's office and Etta Williams' residence. In an August 23, 2003, raid, DEA agents seized lists of fictitious patients, cash, promethazine with codeine, computers, pre-printed prescriptions, and doctor dispensing reports.⁶ The investigation brought appellants' and others' pharmacies to DEA's attention. DEA agents served notices of inspection on the pharmacies, visited the pharmacies, questioned the pharmacists, and obtained copies of dispensing reports.

On September 29, 2004, a federal grand jury sitting in the Houston Division of the Southern District of Texas returned a 121 count indictment against the appellants and others. A 190 count superceding indictment issued on November 24, 2004, and the case went to trial. On May 17, 2005, after thirteen days of trial proceedings, and five days of jury deliberation without a verdict, Judge Hittner of the United States District Court for the Southern District of Texas declared a mistrial due to the hung jury.

On June 9, 2005, the grand jury handed down an 82 count second superceding indictment charging the appellants as well as four other defendants with numerous crimes related to their drug conspiracy.⁷ The indictment included notices of criminal forfeiture pursuant to 18 U.S.C. § 982 and 21 U.S.C. § 853. The second jury trial began on August 16, 2005, and on October 4, 2005 the jury convicted the appellants of all offenses charged under the indictment. All were convicted of one count of conspiracy to unlawfully distribute two controlled substances, hydrocodone (a Schedule III controlled substance) and promethazine with codeine (a Schedule V controlled substance), from October 2002 to December 2003.⁸ Otufale was also convicted of actual distribution from December 2002 to August 2003.⁹ Combs and Brown were convicted of distribution from January to November 2003.¹⁰ Wiley and Esset were convicted of distribution from December 2002 to December 2003.¹¹ Otufale was convicted of seven counts of Money Laundering Promotion.¹² Combs and Brown were convicted of ten counts of Money Laundering Promotion¹³ and seven counts of Money Laundering Concealment.¹⁴ Wiley and Essett were convicted of ten counts of Money Laundering Promotion,¹⁵ for fourteen counts of Money Laundering Concealment,¹⁶ and for six counts of Engaging in Monetary Transactions in Property Derived from Specified Unlawful Activity.¹⁷ Wiley was convicted of an additional three counts of this latter offense,¹⁸ and Essett of a separate seven counts of the same offense as well.¹⁹

Pursuant to the court's findings and order, the appellants were subject to monetary penalties and to forfeiture of property.²⁰ They were also ordered to be imprisoned: Essett for 151 months,²¹ and Wiley,²² Combs,²³ Otufale,²⁴ and Brown²⁵ each for 120 months. Each sentence is to be followed by three years of supervised release. The sentences reflect upward departures based on the excessive quantities and the toxicity of the combination of drugs involved.

The appellants owned and operated independent pharmacies.²⁶ At trial, evidence established that all of these pharmacists filled large numbers of Herpin prescriptions.²⁷ The government introduced additional evidence of each pharmacist's individual involvement in the drug distribution conspiracy:

(1) Otufale. According to Herpin's testimony, she met Otufale in late 2002, when he dropped off Med-Stop coupons at her office; noticing her empty office, Otufale offered to send her patients. He also informed her that their mutual acquaintance (and unindicted co-conspirator) Dr. Peters was "hot," apparently meaning that he was under investigation by law enforcement officials.²⁸

Their relationship blossomed. Dispensing records show that over the charged time period, Otufale filled many thousands of Herpin prescriptions, including from lists of fictitious names. May 2003 alone saw him fill 4,529 of her prescriptions. For much of 2003, Otufale filled one to two hundred Herpin prescriptions per week for Williams (who was still dealing drugs while she was also working at Herpin's office), and occasionally he even sold her pint bottles of promethazine with codeine without labels. The going price per bottle of promethazine with codeine between Williams and Otufale was seventy-five dollars.

A traffic stop of a man named Charlie Johnson uncovered bottles of hydrocodone and promethazine with codeine that had been dispensed by Med-Stop, bore labels of names other than that of Johnson, and listed Herpin as the prescribing physician. Many were dated to the same day that they were discovered. Johnson himself was apparently abusing the syrup while driving.

The drug dealer Omar Fahie, one of Otufale's original co-defendants, testified that Otufale filled Herpin scripts for him once every week or two, off lists of up to one hundred names. Otufale filled many prescriptions of unindicted co-conspirators as well, including Drs. Gbaanador and Peters, as attested by Sharon Boutte (a drug dealer who acted as intermediary between Peters and Otufale), and by Med-Stop's dispensing records. Here as throughout, drug purchases were made almost exclusively in cash and without any health insurance involvement.

(2) Wiley and Essett. After her husband had a dispute with Otufale, Tresy Eze, an employee of Herpin, along with her husband, began to fill prescriptions at Wiley and Essett's pharmacy, I-10 East. Eze set up a meeting between Essett and Herpin, at which Essett sought to establish that Herpin was in fact a doctor by examining her office and asking her questions. Essett then volunteered to send her more "p...