United States v. Oti

• Decision Date: 03 October 2017
• Docket Number: No. 16-10386.,16-10386.
• Citation: 872 F.3d 678
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Elechi N. OTI; Theodore E. Okechuku ; Kelvin L. Rutledge; Emmanuel C. Iwuoha, Defendants–Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

872 F.3d 678

UNITED STATES of America, Plaintiff–Appellee,

v.Elechi N. OTI; Theodore E. Okechuku ; Kelvin L. Rutledge; Emmanuel C. Iwuoha, Defendants–Appellants.

No. 16-10386.

United States Court of Appeals, Fifth Circuit.

FILED October 3, 2017

Gail A. Hayworth, James Wesley Hendrix, Assistant U.S. Attorney, U.S. Attorney's Office, Dallas, TX, for Plaintiff-Appellee.

Dianne Kathryn Jones McVay, Esq., Jones McVay Law Firm, P.L.L.C., Dallas, TX, for Elechi N. Oti.

Delonia Anita Watson, Law Office of Delonia A. Watson, Fort Worth, TX, for Theodore E. Okechuku.

Bruce Edward Anton, Sorrels, Udashen & Anton, Dallas, TX, for Kelvin L. Rutledge.

F. Clinton Broden, Broden & Mickelsen, Dallas, TX, for Emmanuel C. Iwuoha.

Before JOLLY, ELROD, Circuit Judges, and STARRETT, District Judge.^*

JENNIFER WALKER ELROD, Circuit Judge:

After a two-week jury trial, Defendant-Appellants Theodore Okechuku, Elechi Oti, Emmanuel Iwuoha, and Kevin Rutledge were convicted of conspiring to unlawfully distribute hydrocodone outside the scope of professional practice and without a legitimate medical purpose as part of an alleged pill mill. Okechuku was also convicted of two additional firearm counts—using, carrying, and brandishing a firearm during and in relation to a drug-trafficking crime and conspiring to do the same. Appellants challenge the sufficiency of the evidence of their convictions as well as allege that the district court committed various errors at trial and at sentencing. Because the evidence was sufficient to support Appellants' convictions and because we conclude that the errors Appellants allege either were not errors or they were harmless, we AFFIRM.

I. Background

Defendant-Appellant Theodore Okechuku is a medical doctor who owned and operated a pain-management clinic called the Medical Rehabilitation Center in Dallas, Texas.¹ Okechuku worked at the clinic one to two days a week, also working full-time as a pediatric anesthesiologist at the University of Mississippi. Okechuku operated the clinic with the assistance of Ignatius Ezenagu, who worked as office manager at the clinic. The clinic was a cash- only business, and it did not accept insurance, Medicaid, or Medicare, nor did it take appointments. When the clinic opened in the mornings, it usually had thirty to forty patients waiting to enter. On average, the clinic had $5,000 in revenue a day and as much as $11,000 per day.

In addition to Okechuku, two of the other defendant-appellants worked at the clinic. Elechi Oti was a licensed physician's assistant who saw patients and wrote prescriptions at the clinic three days a week. Emmanuel Iwuoha, who did not have a medical license in the United States, saw patients and wrote prescriptions that were pre-signed by Okechuku. Okechuku paid Oti and Iwuoha per patient, and the patient visits typically lasted only four to eight minutes and involved little-to-no physical examination. Their medical notes were consistently sparse, and they wrote almost every patient a prescription for hydrocodone

.²

A man named Jerry Reed frequently brought people to the clinic. David Reed, Jerry's brother, and Defendant-Appellant Kevin Rutledge also brought people to the clinic. Jerry Reed, David Reed, Rutledge, and their cohorts recruited "patients"—often from homeless shelters—and drove them to the clinic and paid for their patient examination. After the patients received their prescriptions from the clinic, these men would pay to fill the prescriptions and keep the medication to be resold later. The men payed the patients as much as $50 each for their services.

Okechuku implemented various security measures at the clinic. A large amount of cash was generated at the clinic every day. Okechuku put up bars around the room where clinic employees collected cash, hired armed security guards, and installed surveillance cameras that allowed him to observe remotely what was happening at the clinic from his cell phone. He also required clinic employees to fax him the clinic's cash earnings each day.

In April 2013, Okechuku fired Ezenagu. Several days after Okechuku fired Ezenagu, the FBI executed a search warrant at the clinic, suspecting that the clinic was being used as a "pill mill"—a drug business exchanging controlled substances for cash under the guise of a doctor's office. Agents seized patient files, business records, pre-written prescriptions, and seventy-seven days of surveillance camera footage.

In 2014, Okechuku, Oti, Iwuoha, Rutledge, David Reed, Jerry Reed, and Ezenagu were all charged in a superseding indictment with conspiring to unlawfully distribute a controlled substance, in violation of 21 U.S.C. §§ 846, 841(a)(1) & (b)(1)(E)(i) (Count One); using, carrying, and brandishing a firearm during and in relation to, and possessing and brandishing a firearm in furtherance of, a drug-trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (Count Two), and conspiring to do the same in violation of 18 U.S.C. § 924(o) (Count Three). The government later filed a motion to dismiss Count Three as to everyone except for Ezenagu and Okechuku. In October 2015, Okechuku, Iwuoha, Oti, and Rutledge proceeded to trial together.

At trial, the defense's theory was that Ezenagu used the clinic without Okechuku's knowledge and made an unlawful agreement with Jerry Reed to bring illegitimate patients into the clinic. Defense counsel contended that these fake patients duped Okechuku, Oti, and Iwuoha into prescribing them controlled substances that were not medically necessary. Defense counsel also asserted that Okechuku and his employees ran a legitimate medical clinic and conscientiously tried to screen for illegitimate patients. Okechuku testified at trial in his own defense.

The government's theory of the case was that the defendants operated the clinic as a "pill mill". In support of this theory, the government presented five full days of evidence, including eighteen witnesses as well as video and photographic evidence of the events that transpired at the clinic. After a two-week trial, the jury found Okechuku, Oti, Iwuoha, and Rutledge guilty of Count One—conspiring to unlawfully distribute hydrocodone outside the scope of professional practice and without a legitimate medical purpose. The jury also found Okechuku guilty of Counts Two and Three—using, carrying, and brandishing a firearm during and in relation to a drug-trafficking crime and conspiring to do the same.

The district court sentenced Okechuku to 300 months in prison, Oti to 97 months, Iwuoha to 97 months, and Rutledge to 120 months. All four of these defendants now appeal their convictions on various grounds.

II. Sufficiency of the Evidence

Okechuku, Iwuoha, and Oti challenge the sufficiency of the evidence for their convictions. Because Okechuku and Iwuoha preserved the issue by moving for acquittal under Federal Rule of Criminal Procedure 29 at the close of the government's case-in-chief and again post-verdict, we will review their challenges de novo . See United States v. Girod , 646 F.3d 304, 313 (5th Cir. 2011). Our de novo review of a challenge to the sufficiency of the evidence is "highly deferential to the verdict." United States v. Cannon , 750 F.3d 492, 506 (5th Cir. 2014). We consider the evidence in the light most favorable to the government, with all reasonable inferences and credibility determinations made in the government's favor. United States v. Santillana , 604 F.3d 192, 195 (5th Cir. 2010). "[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." Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Our inquiry is limited to whether the jury's verdict was reasonable, not whether we believe it to be correct. See United States v. Moreno-Gonzalez , 662 F.3d 369, 372 (5th Cir. 2011).

Because Oti failed to renew her motion for judgment of acquittal after the jury's verdict, we review her sufficiency challenge for plain error. See United States v. McIntosh , 280 F.3d 479, 483 (5th Cir. 2002). In the sufficiency of the evidence context, this court has stated that it will reverse under plain error review only if there is a "manifest miscarriage of justice," which occurs only where "the record is devoid of evidence pointing to guilt" or the evidence is so tenuous that a conviction is "shocking." United States v. Delgado , 672 F.3d 320, 331 (5th Cir. 2012).

A. Count One

Okechuku, Iwuoha, and Oti each challenge the sufficiency of the evidence supporting their conviction of conspiring to unlawfully distribute hydrocodone outside the scope of a professional practice. The elements of conspiracy to distribute and dispense a controlled substances outside the scope of professional practice are: (1) an agreement by two or more persons to unlawfully distribute or dispense a controlled substance outside the scope of professional practice and without a legitimate medical purpose;³ (2) the defendant's knowledge of the unlawful purpose of the agreement; and (3) the defendant's willful participation in the agreement. See United States v. Simpson , 741 F.3d 539, 547 (5th Cir. 2014) (citing 18 U.S.C. § 1349 ); see also 21 U.S.C. §§ 846, 841(a)(1). An agreement may be inferred from concert of action, knowledge may be inferred from surrounding circumstances, and voluntary participation may be inferred from a collection of circumstances. See United States v. Grant , 683 F.3d 639, 643 (5th Cir. 2012). We conclude that the evidence presented at trial is sufficient to support each element of this offense as to Okechuku, Iwuoha, and Oti.⁴

As to Okechuku, the evidence presented by the government at trial demonstrated that he was the owner of the clinic, and that he kept close tabs on the clinic.⁵ Okechuku was physically present at the clinic two to three days a week, and he himself testified that he would have known what...