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United States v. Otuonye

United States District Court, D. Kansas

October 22, 2019

UNITED STATES OF AMERICA Plaintiff,
v.
EBUBE OTUONYE, Defendant.

          MEMORANDUM AND ORDER

          ERIC F. MELGREN UNITED STATES DISTRICT JUDGE

         On July 23, 2019, a jury convicted Defendant Ebube Otuonye on Counts 1, 2, 3, and 4 of the Indictment. In Count 1, Defendant was found guilty of conspiracy to distribute Schedule II controlled substances outside the usual course of medical practice and without legitimate medical need in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C), and 21 U.S.C. § 846. In Count 2, Defendant was found guilty of distributing Schedule II controlled substances outside the usual course of medical practice and without legitimate medical need in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). In Counts 3 and 4, Defendant was found guilty of health care fraud in violation of 18 U.S.C. § 1347. Defendant has now filed a Motion for Judgment of Acquittal or New Trial (Doc. 91). For the reasons stated below, the Court denies the motion.

         I. Factual and Procedural Background

         Defendant was a licensed pharmacist and owned his own business, Neighborhood Pharmacy, in Wichita, Kansas. The Government indicted Defendant on charges that he reached an agreement with Doctor Steven Henson to fill prescriptions for controlled substances that Henson wrote for illegitimate purposes. According to the Indictment, Defendant filled prescriptions for approximately 21, 681 pills of Oxycodone, 48, 683 pills of Methadone, 18, 049 pills of Hydromorphone (all Schedule II controlled substances) as well as 7, 890 pills of Alprazolam (Schedule IV controlled substance) outside the usual course of professional medical practice and without a legitimate medical purpose. Defendant was charged with unlawfully distributing the prescription drugs, either as a principal or as an aider or abettor; he was also charged with conspiracy to distribute the prescription drugs. Additionally, the Government charged Defendant with committing health care fraud by submitting reimbursement claims to Medicare and Medicaid for prescriptions that were not for a legitimate medical purpose.

         The Court held a jury trial from July 15-23, 2019. The Government called 24 witnesses during its case-in-chief. The Government's presentation of evidence included evidence that Defendant had a policy at his pharmacy (posted on a sign for all customers to see) that he would fill a prescription for a narcotic only if it was accompanied by three prescriptions for non-narcotics (hereinafter referred to as the “3-1 policy”). The Government admitted into evidence a voicemail Defendant left for Henson asking the doctor to write a prescription for three non-narcotics to accompany a prescription for narcotics one of Henson's patients brought to the Defendant's pharmacy.

         At trial, the Government introduced evidence from multiple Henson patients who filled prescriptions at Defendant's pharmacy, discussing that Henson provided them prescriptions for controlled substances in exchange for cash. One witness, Michael Osterman, testified that Henson's prescriptions were useless without a pharmacist willing to fill them. The Government introduced into evidence text messages Henson sent to his patients instructing them to go to Defendant's pharmacy after the patients were having trouble filling their prescriptions at other pharmacies.

         The Government elicited testimony from other pharmacists and prescribers stating that the high quantity of pills and high dosages in the Henson prescriptions-as well as, at times, the duplicative or even dangerous drug combinations-should have alerted Defendant that the prescriptions were not for legitimate medical purposes. Additionally, the Government presented evidence that Defendant's relief pharmacist, Raghad Sabra, and his pharmacy tech, Colleen Pauly, were concerned about the legitimacy of Henson's prescriptions and raised those concerns with Defendant. Furthermore, Sabra, in exercising her independent professional judgment, refused to fill any prescriptions for Henson's patients.

         The Government also admitted into evidence-with Defendant stipulating as to foundation-voluminous business records taken from Defendant's seized computer and the Kansas Prescription Drug Monitoring Program's records that were available to Defendant and showed how many prescriptions for controlled substances Henson's patients had filled (including at other pharmacies). The Government created various charts summarizing the information in these records and presented them to the jury.

         The Government also called as a witness Korby Harshaw, who investigated health care fraud for the Department of Health and Human Services. Harshaw's testimony connected Medicare and Medicaid claims that Defendant submitted to several Henson prescriptions, including the three non-narcotics that Defendant solicited from Henson in his voicemail.

         After the Government concluded its case-in-chief, both parties rested. Following deliberations, the jury returned a verdict of guilty on all four counts. Defendant then filed the present motion.

         II. Discussion

         A. Motion for Judgment of Acquittal

         Rule 29(c)(2) of the Federal Rules of Criminal Procedure states, in relevant part, that “[i]f the jury has returned a guilty verdict, the court may set aside the verdict and enter an acquittal.” When reviewing the sufficiency of evidence to sustain a guilty verdict, the Court “ask[s], 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.' ”[1] Substantial evidence must support the conviction, but “ ‘it need not conclusively exclude every other reasonable hypothesis and it need not negate all possibilities except guilt.' ”[2] Furthermore, the Court cannot cast aspersions on the credibility of witnesses or weigh conflicting evidence, because “these matters are within the exclusive province of the jury.”[3] In sum, the Court must “simply determine whether the evidence, if believed, would establish each element of the crime.”[4]

         Defendant asserts that, even when viewing the evidence in the light most favorable to the government, no reasonable juror could find him guilty beyond a reasonable doubt on any count.Defendant does not specifically address any element of any count for which he believes the Government's evidence to be lacking. Rather, Defendant makes two arguments about the evidence at trial generally. First, Defendant argues that at trial the Government relied heavily on evidence that Defendant's 3-1 policy. Defendant argues that he instituted this policy in an attempt to discourage individuals wanting to illicitly obtain prescription drugs from using his pharmacy. Second, Defendant argues that the evidence at trial showed that the number of pills Defendant dispensed to Henson's patients decreased monthly; Defendant suggests that people involved in the distribution of drugs, or drug trafficking organizations, generally do not peak in the first month but rather increase their sales over time. Neither argument is persuasive.

         First, Defendant had the opportunity to argue his interpretation of the 3-1 policy to the jury. The Government's theory was that the 3-1 policy showed Defendant's efforts to conceal his illegal activity by keeping a low ratio of narcotic to non-narcotic prescriptions filled at his pharmacy. It was the jury's role to weigh the evidence and make its own determination about the intent behind Defendant's 3-1 policy and to consider that evidence in the context of all the evidence at trial. Defendant is asking the Court to reweigh the evidence at trial, something the Court cannot do.

         Second, Defendant argues that “[p]eople involved in distribution of drugs, or drug trafficking organizations, generally do not peak in the first month [but] rather continue to increase their sales over time.” Defendant, however, presented no evidence to the jury about the economics of the illegal drug trade, either generally or specific to pharmacists. Even if Defendant had presented such evidence, it would have been the jury's responsibility to weigh that evidence in conjunction with the rest of the evidence admitted at trial. Defendant's argument about what typically happens in the illegal drug trade has no bearing on the Court's determination of whether the jury had sufficient evidence to reach its verdict.

         1. Conspiracy (Count 1)

         To find Defendant guilty on Count 1, the jury was instructed that it must find beyond a reasonable doubt that: (1) Defendant reached an agreement with Henson to distribute prescription drugs outside the usual course of medical practice, (2) Defendant knew the essential objective of the conspiracy, (3) Defendant knowingly and voluntarily joined the conspiracy, and (4) there was interdependence between Defendant and Henson.[5] The jury was also instructed that the existence of a conspiracy “may be inferred from the circumstances and the conduct of the parties, since ordinarily a conspiracy is characterized by secrecy in its origin and its execution.”[6] Defendant does not identify which element or elements he believes lacked sufficient evidence.

         At trial, the Government presented overwhelming evidence that Defendant was filling prescriptions written by Henson that were outside the usual course of medical practice and without legitimate medical need. This evidence included testimony by several of Defendant's customers stating that the prescriptions were not for legitimate medical purposes. More importantly, the Government presented testimony from other pharmacists and prescribers showing that Defendant should have recognized the prescriptions as illegitimate based on the type and quantity of drugs prescribed. Additionally, Raghad Sabra (Defendant's relief pharmacist) and Colleen Pauly (Defendant's pharmacy technician) both testified that they had concerns about the Henson prescriptions; Sabra raised those concerns with Defendant and informed him that she was unwilling to fill Henson prescriptions. Lastly, the Government elicited testimony from multiple witnesses indicating that Defendant's policy requiring three non-narcotic prescriptions for every narcotic prescription was highly unusual.

         The Government also presented evidence that during the conspiracy the number of Henson's prescriptions that Defendant filled increased dramatically and the vast majority of those prescriptions were for controlled narcotics. The Government presented evidence that Defendant and Hanson had a substantial increase in contact by telephone and in person during the conspiracy. The jury listened to a voicemail Defendant left for Henson asking the doctor to write a prescription for three non-narcotics before the Defendant would fill a prescription for narcotics. Also admitted into evidence were text messages between Henson and Defendant's customers suggesting that Defendant had agreed to fill Henson's narcotic prescriptions. Finally, the Government introduced evidence that Henson's prescriptions were useless without a pharmacist willing to fill them and Henson's patients were increasingly having difficulty filling Henson's prescriptions at other pharmacies. Based on this evidence, the Court holds that a reasonable juror could have found Defendant guilty beyond a reasonable doubt on Count 1.

         2. Distributing a controlled substance (Count 2)

         To find Defendant guilty on Count 2, the jury was instructed that it must find beyond a reasonable doubt that: (1) Defendant distributed or dispensed controlled prescription drugs, (2) Defendant acted knowingly and intentionally, and (3) Defendant distributed the drugs outside the usual course of professional practice and without a legitimate medical purpose. Defendant was charged as either a principal or an aider and abettor. Defendant does not identify which element or elements he believes lacked sufficient evidence.

         Much of the evidence discussed with regards to Count 1 applies equally to Count 2. Specifically, the Government presented testimony from multiple witnesses stating that Defendant filled Henson's prescriptions. In addition, the Government presented evidence from two pharmacists who testified that details about the Henson prescriptions-including the dosages, pill quantities, and, at times, duplicative and dangerous drug combinations-should have alerted Defendant that the prescriptions were not for legitimate medical needs. The jury also heard testimony from Defendant's relief pharmacist, Sabra, who recognized the illegitimacy of the Henson prescriptions and raised those concerns with Defendant. The jury heard testimony from multiple witnesses that Defendant's 3-1 policy was highly unusual. The jury also listened to the voicemail where the Defendant enforced the 3-1 policy by asking Henson to write a prescription for three (unspecified) non-narcotics before he would fill a narcotic prescription, and the Government presented evidence that pharmacists soliciting unidentified prescriptions is not consistent with legitimate professional practice.

         Although this is not the grand sum of the Government's evidence admitted at trial, it is sufficient for a reasonable juror to conclude, beyond a reasonable doubt, that Defendant knowingly and intentionally distributed controlled substances outside the usual course of professional practice and without a legitimate medical purpose.

         3. Health care fraud (Counts 3 and 4)

         To find Defendant guilty on Counts 3 and 4, the jury was instructed that it must find beyond a reasonable doubt that: (1) Defendant knowingly and willfully used a scheme or artifice to defraud a health care benefit program, (2) Defendant made statements or representations, or omitted facts, which were material, (3) the statements or representations were false, (4) Defendant acted with specific intent to defraud, and (5) the scheme or artifice to defraud affected interstate commerce. Defendant does not identify which element or elements he believes lacked sufficient evidence.

         In addition to the evidence discussed above regarding the illegitimacy of the Henson prescriptions, the Government called as a witness Korby Harshaw, who investigated health care fraud for the Department of Health and Human Services. Harshaw's testimony linked a number of Henson's illegitimate prescriptions to specific claims Defendant submitted to Medicare and Medicaid for reimbursement. Harshaw also testified that Defendant submitted a Medicaid claim for the three non-narcotics he solicited from Henson in his voicemail. Finally, Harshaw testified that unless Defendant submits a claim-a process that involves representing that the prescription was for a legitimate ...


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