U.S. v. Achobe

• Decision Date: 18 December 2008
• Docket Number: No. 06-20229.,06-20229.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Isaac Simeon ACHOBE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

560 F.3d 259

UNITED STATES of America, Plaintiff-Appellee, v. Isaac Simeon ACHOBE, Defendant-Appellant.

No. 06-20229.

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.

Robert Kelsey Kry (argued), Baker Botts, Washington, DC, for Achobe.

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

Before KING, HIGGINBOTHAM, and WIENER, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Isaac Simeon Achobe was a pharmacist convicted with a number of others for their involvement in the illegal distribution of drugs. Achobe was convicted alongside five fellow pharmacists. His timely appeal was severed from his co-defendants. Their appeal has been decided this day by a different panel of this court, in United States v. Brown, No. 05-20997, 2008 WL 5255903, 553 F.3d 768 (5th Cir.2008). We rely on the factual recitation from that opinion, supplementing it with details relevant to Achobe.

I. BACKGROUND AND FACTS

The background of the conspiracy is this. On the suggestion of Achobe, Dr. Callie Herpin opened a pain management clinic in Houston, which soon evolved into a "script mill" that did little more than unlawfully sell prescriptions for controlled substances. Achobe and his co-defendants at trial were pharmacists who filled these prescriptions. For this case, the two most important drugs that Herpin wrote scripts for are promethazine with codeine, a Schedule V drug that treats coughs and nausea, and hydrocodone, a Schedule III pain killer. Both are known to have a high risk of abuse. Promethazine with codeine, often referred to as "purple" or "syrup," is a major street drug in the Houston area, and hydrocodone is a powerful, potentially addictive opioid narcotic, marketed under many names (Vicodin is one acetaminophen-hydrocodone blend), and sometimes, on the street, taken in combination with syrup and other drugs.

Drug dealers bought prescriptions from Herpin and at least three other doctors, sometimes in large quantities at a time. The dealers filled the prescriptions at pharmacies—usually independent pharmacies with whom they had long-term relationships, because most mainstream pharmacies will not fill prescriptions for these drugs, especially in often-repeated and large quantities. The dealers paid with large amounts of cash and then sold the drugs on the street.

The charged conspiracy period ran from around October 2002 to December 2003. The conspiracy had its origins in a 2002 conversation between Herpin and Achobe. Since 1997, Achobe had owned and run a Houston pharmacy called American Choice Home Healthcare Pharmacy.¹ Herpin, a doctor since 1998, was at the time working part-time at a pediatrics clinic in the same building as American Choice. She told Achobe she was unhappy with her job, because it required long hours and offered too little pay. Achobe recommended that she enter the "pain management" business and referred her to some of his acquaintances who were "pain management specialists," Dr. Peters and Dr. Gbanaador. Achobe gave her advice about running a "pain management" practice and said that he could send "patients" to her (at least thirty to forty percent of Achobe's business involved filling prescriptions from "pain management" doctors). Herpin soon went from writing small numbers of prescriptions for individuals to selling scripts with information drawn from lists of fictitious patients with corresponding prescriptions. The government says that the co-conspirator pharmacists were in on the fix; they would accept large cash payments, and fill suspiciously large quantities of drugs and numbers of prescriptions for dealers who would in many cases come in repeatedly with scripts filled out in many different individuals' names. Achobe himself spurned some of the more egregious of these practices.

Herpin came to the attention of the DEA, eventually pleading guilty to conspiracy to distribute illegally narcotics and to Medicare fraud. Herpin was also writing illegal prescriptions for wheelchairs to further her Medicare fraud, but these defendants were not involved in that activity. Herpin, a pharmacist named Daryl Armstrong, a drug-dealer-turned-Herpin-employee Etta Williams, and other drug dealers, all testified for the government.

A grand jury returned a 121 count indictment against Achobe and others in September 2004. A 190 count superceding indictment issued in November 2004, and the case went to trial. The jury hung and the court declared a mistrial. The grand jury returned an 82 count second superceding indictment after the mistrial. In addition to drug distribution and conspiracy counts, Achobe faced six counts of aiding and abetting money laundering promotion in violation of 18 U.S.C. § 1956(a)(1)(A)(i). In addition to Achobe and other pharmacists, the second superceding indictment charged three co-conspirators who either pled guilty or were convicted in separate trials.² Achobe and five pharmacist co-defendants went to trial again. The trial began on August 16, 2005, and the prosecution rested on September 15. Defense rested on September 27.

The trial centered on knowledge: did the pharmacists know they were filling illegitimate prescriptions? The prosecution's evidence was mostly circumstantial. There was testimony that the amounts of drugs being prescribed were unusual, as were the refill authorizations. The drug dealers who purchased the prescriptions would have multiple prescriptions filled at a time, and the prescriptions were often nearly identical. The same drug dealers were making numerous trips to the same pharmacies within short periods of time. And, everything was done in cash.

On October 4, 2005, Achobe and his co-defendants were convicted of all offenses with which they were charged. On February 28, 2008, the district court sentenced Achobe to 63 months of imprisonment and levied monetary penalties on him. He raises a number of grounds on appeal.

II. SUFFICIENCY OF ILLEGAL DISTRIBUTION EVIDENCE

A. Evidence at the Second Trial

Achobe challenges the sufficiency of the evidence supporting the jury verdict convicting him of illegal drug conspiracy and distribution.

The standard for a sufficiency claim is high. "It is not for us to weigh the evidence or to determine the credibility of witnesses. The verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it."³ "[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."⁴

In making his sufficiency argument, Achobe seeks to draw a clear line between his co-defendants and himself. He acknowledges that the evidence against his co-defendants is sufficient, even overwhelming, and he seeks to contrast this with the evidence against him. Indeed, their overall quantity of hydrocodone purchases is huge compared to his. They filled many more Herpin prescriptions. Achobe notes that he filled "only a handful of Dr. Herpin's prescriptions—on average, about one or two a day over the course of a year." Government witnesses testified that Achobe would not fill prescriptions from lists and was known for "being law-abiding and doing things by the book and not breaking laws." Achobe points out that in the course of the undercover investigation of Herpin and her conspiracy, he refused to bend the rules for the undercover officer who urged him to refill a prescription early. In the officer's initial visit, she recorded Achobe asking her the typical questions and giving the typical warnings of pharmacists before distributing medicines.

In fact, at the time of his first conversation with Herpin, Achobe was not doing business with one of the "pain management" doctors he pointed her to, because that doctor had not provided him with sufficient documentation for some prescriptions. Achobe presented documentation demonstrating that he called doctors to confirm many prescriptions, or even cancelled prescriptions and notified doctors when their patients were seeking prescriptions from multiple providers for the same medical problems. He had firm rules regarding when he would let individuals pick up prescriptions on the behalf of others.⁵ He had even aided previous federal and state narcotics investigations— DEA once set up a controlled delivery and arrest in his pharmacy.

Furthermore, once Herpin's script mill was operating, Achobe questioned Herpin about the quantities of her prescriptions, at one point he told her to "tone it down," and ultimately he refused to fill any more of Herpin's prescriptions. In the first trial, Herpin confessed that she was "surprised" he had been criminally charged, because he "[n]ever suggest[ed] [that she] break any laws" and was merely "trying to help a young doctor get started in the business"; she testified that "if [she] had followed [Achobe's] advice," she "would not be guilty." She admitted that Achobe did not know of more clearly illicit advice given to her by Dr. Peters, one of the doctors he had recommended that she speak to.⁶ Nonetheless, she testified that she had "assumed" that there was an illegal element underlying his advice.

Achobe finds this last point "confusing[ ]." It need not be. Achobe's business practices were different from, and ultimately incompatible with, some of his co-conspirators. In Herpin's testimony, as throughout the record, there is evidence consistent with Achobe's being a law-abiding pharmacist—or with his being a careful criminal. It is reasonable for Herpin to have "assumed" that Achobe was suggesting that she join an illegal drug distribution conspiracy but carefully observe the superficialities of legal "pain management" practice in order not to get caught. He gave her such advice as: "[D]on't write...