United States v. Akinyoyenu, Criminal Action No. 15-42 (JEB)

CourtU.S. District Court — District of Columbia
Writing for the CourtJAMES E. BOASBERG, United States District Judge
Citation199 F.Supp.3d 106
Parties UNITED STATES of America v. Titilayo Akintomide AKINYOYENU, Defendant.
Decision Date04 August 2016
Docket NumberCriminal Action No. 15-42 (JEB)

199 F.Supp.3d 106

UNITED STATES of America
v.
Titilayo Akintomide AKINYOYENU, Defendant.

Criminal Action No. 15-42 (JEB)

United States District Court, District of Columbia.

Signed August 4, 2016


199 F.Supp.3d 108

John Philip Dominguez, U.S. Attorney's Office for the District of Columbia, Washington, DC, for United States of America.

MEMORANDUM OPINION

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—apexonlinepharmacy.com and bynextday.com—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.

199 F.Supp.3d 109

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, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002) (quoting Lamar v. United States, 240 U.S. 60, 65, 36 S.Ct. 255, 60 L.Ed. 526 (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

199 F.Supp.3d 110

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, 125 S.Ct. 2195, 162 L.Ed.2d 1 (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, 125 S.Ct. 2195.

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 by means of the Internet

(1) In general

It shall be unlawful for any person to knowingly or intentionally—

(A) deliver, distribute, or dispense a controlled substance by means of the Internet, except as authorized by this subchapter.

See Ryan Haight Online Pharmacy Consumer Protection Act of 2008, Pub. L. 110, § 3(f), 122 Stat. 4820, 4829 (2008) (codified as amended at 21 U.S.C. § 841(h) ) (emphasis added). The alleged controlled substance in both counts is Fioricet. See Indictment, Count One, ¶ 15; id. Count Two, ¶ 2.

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4 practice notes
  • United States v. Michael, CIVIL ACTION NO. 3:16CR–101–CRS
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Western District of Kentucky
    • May 12, 2017
    ...substance because it contains butalbital. Id.; Oz, 2016 WL 1183041 at *3–5 ; United States v. Akinyoyenu, No. CR 15–42 (JEB), 199 F.Supp.3d 106 [110–12], 2016 WL 4151040, at *3–4 (D.D.C. Aug. 4, 2016) ; United States v. Riccio, 43 F.Supp.3d 301, 304–05 (S.D.N.Y. 2014) ; United States v. Wil......
  • Karkalas v. Marks, CIVIL ACTION NO. 19-948
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • July 31, 2019
    ...(S.D.N.Y. 2014); United States v. Williams, No. 10-0216, 2010 WL 4669180 (W.D. Okla. Nov. 9, 2010). 175. United States v. Akinyoyenu, 199 F. Supp. 3d 106 (D.D.C. 2016). 176. Williams, 2010 WL 4669180, at *1. 177. Id. 178. Id. at *1 n.2. 179. 21 U.S.C. § 812(c) (list of Schedule III drugs). ......
  • United States v. Jackson, CRIMINAL ACTION NO.: 3:16-CR-31
    • United States
    • United States District Courts. 4th Circuit. Northern District of West Virginia
    • March 24, 2017
    ...if proven, permit a jury to conclude that the defendant committed the criminal offense as charged." United States v. Akinyoyenu, 199 F. Supp. 3d 106 (D.D.C. 2016) (citing United States v. Sanford, Ltd., 859 F. Supp. 2d 102, 107 (D.D.C. 2012); United States v. Bowdoin, 770 F. Supp. 2d 142, 1......
  • Marcin v. Reliance Standard Life Ins. Co., Civil Action No. 13-1308 (ABJ)
    • United States
    • U.S. District Court — District of Columbia
    • August 4, 2016
    ...not explained why the D.C. Code should control in this litigation, which is based on a federal statute—ERISA—and when a federal statute 199 F.Supp.3d 106sets the post-judgment interest rates.10 So the Court will not adopt the Magistrate Judge's recommendation as to the interest rate, and wi......
4 cases
  • United States v. Michael, CIVIL ACTION NO. 3:16CR–101–CRS
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Western District of Kentucky
    • May 12, 2017
    ...substance because it contains butalbital. Id.; Oz, 2016 WL 1183041 at *3–5 ; United States v. Akinyoyenu, No. CR 15–42 (JEB), 199 F.Supp.3d 106 [110–12], 2016 WL 4151040, at *3–4 (D.D.C. Aug. 4, 2016) ; United States v. Riccio, 43 F.Supp.3d 301, 304–05 (S.D.N.Y. 2014) ; United States v. Wil......
  • Karkalas v. Marks, CIVIL ACTION NO. 19-948
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • July 31, 2019
    ...(S.D.N.Y. 2014); United States v. Williams, No. 10-0216, 2010 WL 4669180 (W.D. Okla. Nov. 9, 2010). 175. United States v. Akinyoyenu, 199 F. Supp. 3d 106 (D.D.C. 2016). 176. Williams, 2010 WL 4669180, at *1. 177. Id. 178. Id. at *1 n.2. 179. 21 U.S.C. § 812(c) (list of Schedule III drugs). ......
  • United States v. Jackson, CRIMINAL ACTION NO.: 3:16-CR-31
    • United States
    • United States District Courts. 4th Circuit. Northern District of West Virginia
    • March 24, 2017
    ...if proven, permit a jury to conclude that the defendant committed the criminal offense as charged." United States v. Akinyoyenu, 199 F. Supp. 3d 106 (D.D.C. 2016) (citing United States v. Sanford, Ltd., 859 F. Supp. 2d 102, 107 (D.D.C. 2012); United States v. Bowdoin, 770 F. Supp. 2d 142, 1......
  • Marcin v. Reliance Standard Life Ins. Co., Civil Action No. 13-1308 (ABJ)
    • United States
    • U.S. District Court — District of Columbia
    • August 4, 2016
    ...not explained why the D.C. Code should control in this litigation, which is based on a federal statute—ERISA—and when a federal statute 199 F.Supp.3d 106sets the post-judgment interest rates.10 So the Court will not adopt the Magistrate Judge's recommendation as to the interest rate, and wi......

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