IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-10386

UNITED STATES OF AMERICA, 

 Plaintiff – Appellee,

v.

ELECHI N. OTI; THEODORE E. OKECHUKU; KELVIN L. RUTLEDGE; 

EMMANUEL C. IWUOHA, 

 Defendants – Appellants.

Appeals from the United States District Court 

for the Northern District of Texas

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 

 

* The Honorable Keith Starrett, of the United States District Court for the Southern 

District of Mississippi, sitting by designation.

United States Court of Appeals

Fifth Circuit

FILED

October 3, 2017

Lyle W. Cayce

Clerk

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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 cashonly 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 

 

1 We present the facts in the light most favorable to the conviction, as we must. See 

United States v. Thomas, 690 F.3d 358, 366 (5th Cir. 2012).

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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 

 

2 Hydrocodone is an opioid painkiller. Mayo Clinic, Mayo Clinic Q and A: Opioids for 

treatment of pain—benefits and risks, https://newsnetwork.mayoclinic.org/discussion/mayoclinic-q-and-a-opioids-for-treatment-of-pain-benefits-and-risks/ (last visited September 1, 

2017). Opioids account for more fatal overdoses each year than cocaine and heroin

combined. Id. In 2015 alone, there were over 22,000 fatal overdoses on prescription opioid 

painkillers—more than twice the number in 2005 and more than five times the number in 

2000. NIH, National Overdose Deaths from Select Prescription and Illicit Drugs, 

https://www.drugabuse.gov/sites/default/files/overdose_data_1999-2015.xls (last visited 

September 1, 2017).

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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 twoweek 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 

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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 (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 

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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

 

3 Because Okechuku, Iwuoha, and Oti are all medical professionals and generally 

authorized to prescribe controlled substances, the government also had to prove beyond a 

reasonable doubt that the distribution was other than in the course of professional practice 

and for a legitimate medical purpose. See United States v. Brown, 553 F.3d 768, 781 (5th Cir. 

2008). 

4 Okechuku, Iwuoha, and Oti do not challenge the existence of an agreement between 

Ezenagu and Jerry Reed to violate narcotics laws. They only challenge the sufficiency of the 

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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 was occurring 

at the clinic. The government offered testimony that Okechuku met several 

times alone with Jerry Reed and Ezenagu in his office, as well as Ezenagu’s

testimony that “Okechuku knew from day one” that Jerry Reed was bringing 

illegitimate patients to the clinic. The government offered video evidence 

showing Jerry Reed freely roaming the halls of the clinic and talking to 

Ezenagu just outside Okechuku’s office while Okechuku was present. One 

clinic receptionist testified that drug dealers were at the clinic when Okechuku 

was present at the clinic, and another receptionist testified that she saw 

Okechuku meet with Jerry Reed and Ezenagu a couple of times in his office. 

Other video evidence showed Jerry Reed, Ezenagu, and Okechuku meeting at 

the clinic while the clinic was closed. Within an eight-hour work day, the clinic 

would see forty to fifty patients, a number of patients that the government’s 

expert, Dr. Graves Owen, testified would have been “impossible” for a provider 

practicing within the normal scope of professional practice. Okechuku was 

well-aware that his clinic was seeing this many patients in such a short 

 

evidence showing that they had knowledge of the agreement and that they willfully 

participated in the conspiracy.

5 The evidence showed that when Okechuku was away from the clinic, he kept 

remarkably close tabs on its operations. Specifically, Okechuku installed several cameras at 

the clinic that allowed him to monitor a live video feed of the clinic’s operations from his cell 

phone. Clinic employees testified that they knew Okechuku monitored the cameras because 

he often called the clinic when he was away to complain that there were too many people 

congregating in the hallway or that patients needed to be controlled outside. Okechuku 

himself testified that he “spot check[ed] the cameras each day. The government provided 

evidence that those same cameras showed Jerry Reed and others coming to the clinic, signing 

in patients, handling patient files, giving cash to patients, and moving freely around the 

clinic. 

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amount of time, as the evidence demonstrated that he required his staff to fax 

him the clinic’s earnings and the number of patients the clinic saw each day. 

This evidence, when viewed in the light most favorable to the conviction, is 

enough to support Okechuku’s conviction under Count One.6 See Santillana, 

604 F.3d at 195.

The evidence at trial was also sufficient to support Iwuoha’s conviction

that he knew of and willfully participated in a pill mill scheme. The 

government presented testimony that even though Iwuoha was not licensed to 

write prescriptions, he wrote prescriptions at the clinic that were pre-signed 

by Okechuku. The government also presented testimony that Iwuoha held 

himself out to be a doctor even though he was not licensed to practice medicine 

in Texas. Despite the fact that he was not licensed to practice medicine, the 

clinic paid Iwuoha more than eight times the amount he was paid at his other 

job as an anesthesiologist technician. Several witnesses testified that many of 

the clinic’s patients were obviously homeless and could not afford a $150 or 

$190 doctor visit or the prescriptions Iwuoha and the other providers wrote. 

Video footage and witness testimony presented at trial established that 

Iwuoha’s patient visits usually lasted less than eight minutes, often lasting 

less than four minutes. Moreover, Iwuoha’s patient notes were consistently 

sparse. Of the 87 patients that Iwuoha saw in a two-day sample period, all 87 

of them were prescribed hydrocodone. Ezenagu testified that he saw Jerry 

Reed go into Iwuoha’s office, and that based on Ezenagu’s experience at the 

clinic, he believed Iwuoha knew what Jerry Reed and the other drug dealers 

 

6 Okechuku lists various pieces of evidence that he claims “the jury could have relied 

to counter the government’s evidence.” However, “[t]he evidence need not exclude every 

reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except 

that of guilty, and the jury is free to choose among reasonable constructions of the evidence.” 

United States v. Salazar, 66 F.3d 363, 370 (5th Cir. 1995).

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were doing.7 This evidence of short visits, sparse patient notes, lack of 

individualized treatment, and higher pay, combined with all of the other 

evidence presented at trial was sufficient to support the jury’s verdict that 

Iwuoha was aware of and voluntarily joined in the pill mill activities occurring 

at the clinic. See Santillana, 604 F.3d at 195.

We likewise conclude that the evidence at trial was sufficient to support 

Oti’s conviction. The government presented evidence at trial that Oti kept 

pages of prescriptions already filled out by her for the highest strength of 

hydrocodone. She also frequently issued non-refillable prescriptions. The 

government also presented testimony from an undercover agent who was 

treated by Oti and testified that Oti watched television during the entire 

examination and never touched her. Video evidence presented at trial also 

showed the consistently short duration of Oti’s patient visits, and documentary 

evidence showed the sparseness of her medical notes. There was also evidence 

that Oti was familiar with Jerry Reed and knew what he was doing, including 

video evidence of her meeting with Jerry Reed in her office and phone records 

showing at least three contacts between them. Further, Ezenagu testified that, 

based on his time and experience at the clinic, he believed Oti knew what Jerry 

Reed, Rutledge, and David Reed were doing at the clinic. Finally, the 

government presented evidence indicating that Oti had worked for a pill mill 

in the past and was therefore familiar with how they operated. Far from being 

 

7 Iwuoha argues that the government’s evidence against him consisted mainly of 

Ezenagu’s unsupported testimony that he “believe[d] that Emmanuel Iwuoha and Elechi Oti 

were aware of what Jerry Reed [and his cohorts] were doing.” However, Ezenagu’s belief was 

based on his experience working at the clinic six days per week and seeing Jerry Reed go into 

Iwuoha’s and Oti’s office on multiple occasions. Further, we accept all credibility 

determinations made by the jury which tend to support the verdict. See United States v. 

Asibor, 109 F.3d 1023, 1030 (5th Cir. 1997).

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devoid of evidence, the trial record has ample evidence showing that Oti 

knowingly and voluntarily joined in a conspiracy to operate the clinic as a pill 

mill. See Delgado, 672 F.3d at 331.

B. Counts Two and Three

Okechuku also challenges the sufficiency of the evidence supporting his 

conviction under the firearm counts. Okechuku was convicted of using, 

carrying, and brandishing a firearm during and in relation to a drugtrafficking offense in violation of 18 U.S.C. § 924(c)(1)(A)(ii). Section 924(c)(1) 

“requires the prosecution to make two showings. First, the prosecution must 

demonstrate that the defendant ‘use[d] or carrie[d] a firearm.’ Second, it must 

prove that the use or carrying was ‘during and in relation to’ a ‘crime of violence 

or drug trafficking crime.’”8 Smith v. United States, 508 U.S. 223, 227–28 

(1993). The jury also found that the firearm was “brandished,” subjecting 

Okechuku to enhanced penalties under 18 U.S.C. § 924(c)(1)(A)(ii). Okechuku 

was also convicted of conspiring to violate section 924(c), in violation of 18 

U.S.C. § 924(o). 

Okechuku challenges both of his firearm convictions on the same basis, 

arguing that there was insufficient evidence to support the “in relation to” 

nexus requirement between carrying or using the firearm and the drugtrafficking crime. “In relation to” means that the firearm must have some 

“purpose or effect with respect to the drug trafficking crime; [thus,] its presence 

or involvement cannot be the result of accident or coincidence.” Smith, 508 U.S. 

at 237–38. Okechuku argues that the evidence fails to show that he intended

 

8 Okechuku argues that because the evidence was insufficient with respect to the 

drug-trafficking conspiracy, the firearm convictions should be vacated. However, because we 

conclude that the evidence at trial was sufficient to support Okechuku’s drug-trafficking 

conspiracy conviction, we reject this argument. 

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to hire armed guards; he argues that it was just “happenstance” that the 

security guards were armed and that the presence of firearms was “unrelated” 

to and had no “purpose or effect” with respect to the drug-trafficking crime. 

We conclude that the evidence presented at trial is sufficient to support 

the “in relation to” nexus requirement of Okechuku’s firearm convictions. This 

evidence includes the testimony of Sam Donnell, one of the armed security 

guards, who testified that Ezenagu approached him and said that he “might 

need the services of an armed security guard” and that he would have to 

discuss the quoted price with his “partner,” i.e., Okechuku. Ezenagu testified 

that Okechuku ultimately made the decision to hire armed guards. Given the 

large amounts of cash held at the clinic and the fact that there were drug 

dealers that frequented the clinic, a reasonable jury could have inferred that 

Okechuku hired the armed guards in order to protect the proceeds and 

personnel of the clinic’s pill mill operation. Indeed, Ezenagu testified that they 

“needed to hire a security guard [because] there was too much money going on 

in [sic] the place.” Okechuku argues that “it can be inferred” from the evidence 

that the fact that the security guards were armed was just a coincidence. 

However, all “inferences that can be drawn from the evidence should be 

resolved in favor of the jury verdict.” Moreno-Gonzalez, 662 F.3d at 372. Given 

this evidence, a reasonable jury could have inferred that Okechuku hired the 

armed guards in order to protect the proceeds and personnel of the clinic’s pill 

mill business.9 See Santillana, 604 F.3d at 195.

Okechuku also argues that the evidence was insufficient to support the 

jury’s determination that the firearms were “brandished” because there was 

 

9 Okechuku also argues that the government relied on improper expert testimony to 

prove that the firearm was related to the drug-trafficking conspiracy. We address this issue 

in Part III.A.1, infra.

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no evidence that the guards intended to intimidate anyone by carrying the 

firearms. “[B]randish means, with respect to a firearm, to display all or part of 

the firearm, or otherwise make the presence of the firearm known to another 

person, in order to intimidate that person, regardless of whether the firearm is 

directly visible to that person.” 18 U.S.C. 924(c)(4). Donnell testified that his 

job was to control the unruly crowds of patients and to prevent robberies. He 

also testified that if there was a fight, robbery, or any type of chaos, he was 

there to quell it with his firearm. Donnell also testified that the firearm was 

displayed every day he came to work at the clinic. On these facts, a reasonable 

jury could have found that the security guards visibly wore firearms with the 

intent to intimidate others at the clinic. See Moreno-Gonzalez, 662 F.3d at 372.

III. Evidentiary Challenges

Okechuku, Iwuoha, and Rutledge each raise challenges regarding the 

evidence admitted at trial. “When a district court’s determination as to the 

admissibility of evidence is questioned on appeal, our applicable standard of 

review is abuse of discretion.” United States v. O’Keefe, 426 F.3d 274, 280 (5th 

Cir. 2005); see also United States v. Wise, 221 F.3d 140, 148 (5th Cir. 2000) 

(“[T]he proper standard of reviewing a district court’s admission or exclusion 

of expert testimony is abuse of discretion.”). The government argues as to each 

of Appellees’ evidentiary challenges that even if the district court erred, the 

error was harmless. See Wise, 221 F.3d at 157. Under this harmless error 

analysis, we will not reverse “[u]nless there is a reasonable possibility that the 

improperly admitted evidence contributed to the conviction.” United States v. 

Mendoza-Medina, 346 F.3d 121, 127 (5th Cir. 2003). The government bears the 

burden of demonstrating that the error was harmless. United States v. Akpan, 

407 F.3d 360, 377 (5th Cir. 2005). 

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“We review for plain error objections to evidence that were not made 

before the district court.” United States v. McGee, 821 F.3d 644, 646 (5th Cir. 

2016). Under our plain error review, the appellant must show that: (1) there 

was an error; (2) the error was clear or obvious; (3) the error affected his or her

substantial rights; and (4) the error seriously affects the fairness, integrity, or 

public reputation of judicial proceedings such that we should exercise our

discretion to reverse. See Delgado, 672 F.3d at 329–31.

We address each of the appellants’ evidentiary challenges in turn.10

A. Okechuku’s Evidentiary Challenges

1.

Okechuku argues that the district court erred under Federal Rule of 

Evidence 704 by allowing the government’s expert witness, ATF Special Agent 

Gordon, to testify as to a legal conclusion regarding the firearm offenses for 

which Okechuku was found guilty. At trial, Gordon was permitted by the 

district court to testify as an expert with regard to the use of firearms in the 

drug trade.11 Gordon has investigated hundreds of drug-trafficking offenses in 

his 18-year career, including several pill mills. During his testimony, the 

government asked Gordon the following:

Based upon the evidence that you saw and the photographs, the 

videotape, and the information that was made available to you, do 

you have an opinion as to whether or not those security guards 

 

10 Both Okechuku and Iwuoha argue that their convictions require reversal under the 

cumulative error doctrine. The cumulative error doctrine “provides that an aggregation of 

non-reversible errors (i.e., plain errors failing to necessitate reversal and harmless errors) 

can yield a denial of the constitutional right to a fair trial, which calls for reversal.” United 

States v. Munoz, 150 F.3d 401, 418 (5th Cir. 1998). Cumulative error justifies reversal only 

when errors “so fatally infect the trial that they violated the trial’s fundamental fairness.” 

Delgado, 672 F.3d at 344. “[T]he possibility of cumulative error is often acknowledged but 

practically never found persuasive.” Id. Here, the alleged errors do not rise to the level of 

cumulative error. 

11 Okechuku does not challenge Agent Gordon’s designation as an expert witness.

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were using, carrying, and brandishing a firearm in furtherance of 

a drug trafficking activity?

Gordon responded “Absolutely.” Defense counsel objected, and the district 

court judge called counsel to the bench. After the bench conference, the 

government was allowed to continue its line of questioning. Gordon was asked 

whether, “assuming that the jury in this case were to find that . . . a pill mill 

was being operated out of the [the clinic] . . . [do you] have an opinion as to 

whether or not you believe that firearms were being used to protect this . . . 

drug enterprise?” Gordon responded “Yes, sir.” When asked what his opinion 

was, Gordon added:

My opinion is that the firearms used in this particular operation 

are very similar to cases that I’ve investigated in the past where 

people would hire security guards or even law enforcement officers 

to protect the drug trafficking activity and those individuals 

carrying those firearms were using those firearms in furtherance 

of the drug trafficking activity and those individuals who hired 

those security guards or law enforcement officers were also using 

those firearms in furtherance of the drug trafficking activity.

Okechuku argues that the district court erred by admitting this portion of 

Gordon’s testimony because it states a legal conclusion and circumvented the 

jury’s decision-making function by telling it how to decide the case. 

We have repeatedly addressed the proper bounds of expert testimony. 

See, e.g., United States v. Haines, 803 F.3d 713, 728–34 (5th Cir. 2015); United 

States v. Thomas, 847 F.3d 193, 206 (5th Cir. 2017). We have especially urged 

the government to use caution when case agents also function as experts

because the expert label “confers upon [the agent] the aura of special reliability 

and trustworthiness surrounding expert testimony.” Haines, 803 F.3d at 730 

(quoting United States v. Dukagjini, 326 F.3d 43, 53 (2d Cir. 2003)). An expert 

witness is permitted to give his opinion on an “ultimate issue” of fact, assuming 

he is qualified to do so. Goodman v. Harris Cnty., 571 F.3d 388, 399 (5th Cir.

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2009). However, an expert witness is not permitted to offer conclusions of law. 

Fed. R. Evid. 704; see also Goodman, 571 F.3d at 399 (“[A]n expert may never 

render conclusions of law[.]”). This rule and the other Federal Rules of 

Evidence “afford ample assurances against the admission of opinions which 

would merely tell the jury what result to reach.” Salas v. Carpenter, 980 F.2d 

299, 305 n.4 (5th Cir. 1992); Fed. R. Evid. 704 advisory committee’s notes 

(1972).

We recognize that there is often a fine line between admissible expert 

testimony pertaining to inferences that can be drawn from the facts of a case 

and inadmissible legal conclusions. However, the government must resist the 

temptation to test the boundaries of that line. Here, the government solicited 

testimony from Gordon that the security guards at the clinic were “similar to” 

other cases that he had investigated in which the security guards “were using 

those firearms in furtherance of the drug trafficking activity and those 

individuals who hired those security guards . . . were also using those firearms 

in furtherance of the drug trafficking activity.” Gordon’s use of the phrase “in 

furtherance of the drug trafficking activity” stated a legal conclusion that 

should have been left to the jury to decide. The fact that Gordon was actually 

discussing past cases he had investigated—and not technically discussing 

Okechuku’s actions in this case—is of no matter. See United States v. Alvarez,

837 F.2d 1024, 1030 (11th Cir. 1988) (“When the expert is a government law 

enforcement agent testifying on behalf of the prosecution about participation 

in prior and similar cases, the possibility that the jury will give undue weight 

to the expert’s testimony is greatly increased.”). 

Even though Gordon’s testimony ventured into forbidden territory and 

its admission constituted error, we conclude that the error was harmless. As 

discussed above, even excluding Gordon’s testimony, there was ample evidence 

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to support Okechuku’s conviction under the firearm counts. The testimony of 

Ezenagu and Donnell show that Ezenagu acted as Okechuku’s agent in seeking 

the services of armed guards at the clinic. Ezenagu also testified that the 

purpose of having the armed guards was to protect the high amount of cash 

coming into the clinic. Finally, Donnell testified that he and the other security 

guards visibly wore their firearms every day at the clinic and that he was there 

to quell any disturbances with his firearm. Because of this evidence supporting 

the firearm conviction, allowing Gordon’s testimony was harmless error. See 

Haines, 803 F.3d at 732 (holding that the error of admitting an agent’s 

impermissible testimony was harmless because the record, even excluding the 

impermissible testimony, was “replete with evidence” that defendants had 

participated in the conspiracy); see also United States v. Williams, 343 F.3d 

423, 435 n.11 (5th Cir. 2003) (affirming convictions based on the strength of 

the evidence, despite testimony admitted in violation of Rule 704).

2.

Okechuku argues that the district court erred when it allowed FBI 

Special Agent Pekala to testify on cross-examination that Jerry Reed, a nontestifying co-defendant, told him that a Post-It note was an agreement between 

Okechuku and Reed. Okechuku contends that in admitting this evidence, the 

district court violated his Sixth Amendment right to confrontation under 

Bruton v. United States, 391 U.S. 123, 137 (1968). Okechuku concedes that he 

did not lodge an objection to Pekala’s testimony, therefore we apply plain error 

review. See McGee, 821 F.3d at 646. 

At trial, FBI Special Agent Pekala testified that Jerry Reed, a nontestifying co-defendant, had told him that a hand-written Post-It note was 

evidence of the conspiratorial agreement between Reed and Okechuku. The 

Post-It note read: “Jerry 170 1 Free Every 10[.]” During Pekala’s testimony, he 

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testified that he found the note in the trash during his search of the clinic. He 

also testified that the note “appears to be an agreement between Jerry Reed 

and the clinic” and that he thought “the 170 is referring to the cost of an office 

visit. For every ten patients, [Jerry Reed] gets one—I am assuming—

prescription for free.” During cross-examination, Pekala was asked how he 

knew it was an agreement. Pekala responded that Ezenagu and Jerry Reed 

told him it was an agreement. He was asked, “And that is the basis of you 

saying what you said in this courtroom?” Pekala responded, “Well, I thought it 

was that before that.”’ Okechuku argues that this testimony violated his Sixth 

Amendment rights because it deprived him of the opportunity to confront Jerry 

Reed, the real source of the testimony that was being presented to the jury 

through Pekala. 

Even assuming arguendo that the district court erred and that the error 

was plain, Okechuku has not demonstrated that the error affected his 

substantial rights. A defendant demonstrates that an error had an effect on 

his substantial rights when he shows a reasonable probability that the jury, 

absent the error, would have acquitted him. See United States v. Powell, 732 

F.3d 361, 379 (5th Cir. 2013). Pekala’s testimony pertaining to the Post-It note

did not affect Okechuku’s substantial rights because, as discussed above in 

Part II, supra, there is ample evidence supporting Okechuku’s drug trafficking 

conspiracy conviction. We conclude that Okechuku’s Bruton argument fails on 

the third prong of plain error review. See Powell, 732 F.3d at 379. 

3.

Okechuku argues that the district court erred when it permitted the 

government to impeach him during his testimony regarding the FBI 

investigating him for possible insurance fraud. During its cross-examination 

of Okechuku, the government asked Okechuku whether he “was aware of the 

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FBI’s actions” regarding an insurance fraud investigation into a business that 

Okechuku owned. Okechuku denied any knowledge of the government’s

assertion, and the government did not inquire further. Okechuku contends

that the district court erred in allowing the government to ask him this 

question on cross-examination because the government failed to provide a 

good-faith basis for the question and the probative value of the question was 

substantially outweighed by the danger of unfair prejudice. We review this 

challenge for plain error.12

Questions about past specific instances of misconduct pertaining to fraud 

are admissible under Federal Rule of Evidence 608(b) because they are “clearly 

probative of truthfulness or untruthfulness.” United States v. Tomblin, 46 F.3d 

1369, 1389 (5th Cir. 1995). However, when admitting such testimony, the 

danger of unfair prejudice should not substantially outweigh the testimony’s 

probative value. Fed. R. Evid. 403. The district court has substantial discretion 

in determining whether the probative value of the testimony substantially 

outweighs the danger of unfair prejudice. See United States v. Farias-Farias, 

925 F.2d 805, 809 & 811 n.11 (5th Cir. 1991). 

We are unpersuaded by Okechuku’s contention that the government 

failed to provide a good-faith basis for its question about the FBI investigation. 

 

12 The parties agree that we should apply the plain error standard of review to

Okechuku’s argument regarding the good-faith basis for the government’s question about the 

FBI investigation. However, the parties disagree about whether Okechuku preserved his 

argument that he was unfairly prejudiced by the question about the FBI investigation.

Because we conclude that Okechuku raised this specific objection for the first time on appeal, 

we review the district court’s actions for plain error. United States v. Hernandez-Martinez, 

485 F.3d 270, 273 (5th Cir. 2007) (reviewing for plain error where the district court “was not 

on notice of the arguments” the defendant presented on appeal). Moreover, even if we were 

to review the district court’s allowance of this question for abuse of discretion, Okechuku has 

not demonstrated that the district court abused its discretion in allowing questions 

pertaining to the FBI investigation.

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Whether a good-faith basis exists for the government’s question is an issue of 

fact. If Okechuku had timely raised the issue of whether there was a good-faith 

basis for the questioning, the district court could have held a hearing during 

which the government could have presented evidence. Because Okechuku did 

not raise this issue before the district court, the district court did not plainly 

err by allowing the testimony. See United States v. Illies, 805 F.3d 607, 609 

(5th Cir. 2015) (“In this circuit . . . questions of fact capable of resolution by the 

district court can never constitute plain error.”).

Okechuku also argues that the government’s question was unfairly 

prejudicial because there was no preliminary showing that he actually 

committed the acts alleged. But this argument is similarly unpersuasive. 

Okechuku asks for what Rule 608(b) prohibits—extrinsic evidence showing 

that he committed the prior acts. See Fed. R. Evid. 608(b). We have specifically 

held that the basis for questions under Rule 608(b) does not have to “be proved 

as a fact before a good faith inquiry can be made.” United States v. Nixon, 777 

F.2d 958, 970 (5th Cir. 1985); see also Tomblin, 46 F.3d at 1389. Accordingly, 

we conclude that the district court did not commit plain error by allowing the 

government to inquire about the FBI investigation. 

B. Iwuoha’s Evidentiary Challenges

1.

Iwuoha argues that the district court erred when it made a comment 

before the jury that had the effect of lessening the government’s standard of 

proof. During the defense’s direct examination of defense expert Dr. Warfield, 

the district court made the following comment:

Counsel, I still don’t—that’s just a variation of that last question. 

I don’t see how that is going to help this jury answer the issues 

before them, whether the prescriptions were properly issued in 

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this case. That’s the issue the jury is going to have to answer. Stick 

with that.

Iwuoha argues that the question before the jury was not whether the 

prescriptions were properly issued but whether they were legally issued. 

Iwuoha argues that the district court’s comment led the jury to believe that 

mere negligent care in issuing prescriptions warranted a conviction and 

therefore impacted his right to a fair trial. Because Iwuoha did not object to 

the district court’s statement, we review the district court’s statement for plain 

error. See McGee, 821 F.3d at 646.

We are unpersuaded that the district court’s statement amounts to plain 

error because Iwuoha has failed to show that the comment plainly misstated 

the law nor has he shown that he was prejudiced by the comment. In the 

context of the district court’s statement, the difference between properly issued 

and legally issued appears to be merely semantic in nature. The district court 

never indicated that there was a distinction between the two terms in the way 

it used them and therefore did not lower the standard by using the word 

“properly” in the comment to defense counsel. However, even assuming 

arguendo that the district court misstated the law, Iwuoha has failed to show 

that he was prejudiced by a single comment to defense counsel during a twoweek jury trial. Any harmful effect this comment might have had on the jury 

was cured by the jury instructions, which correctly charged that it must find 

that the defendants “unlawfully distributed or dispensed hydrocodone . . . 

outside the scope of professional practice.” 

2.

Iwuoha also argues that both the prosecutor and the government’s 

expert witness misled the jury by indicating that the act of pre-signing a 

prescription for hydrocodone is a felony in Texas. Because Iwuoha did not raise 

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this objection at trial, we apply plain error review. See United States v. Fields,

483 F.3d 313, 360 (5th Cir. 2007).

Section 481.074 of the Texas Health & Safety Code provides that “a 

person may not dispense a controlled substance in Schedule III or IV . . . 

without a written . . . prescription of a practitioner . . . . A prescription under 

this subsection must comply with other applicable state and federal laws.” Tex. 

Health & Safety Code § 481.074(g). Iwuoha acknowledges that the 

prescriptions he gave to patients with pre-signed prescriptions were Schedule 

III drugs. And federal regulations provide that “[a]ll prescriptions for 

controlled substances shall be dated as of, and signed on, the day when 

issued[.]” 21 C.F.R. § 1306.05. Because Texas and federal law state that it is

unlawful to dispense the drugs Iwuoha was dispensing without a prescription 

signed on the same day they were prescribed, we conclude that there was no 

error here, plain or otherwise. 

C. Rutlege’s Evidentiary Challenge

In the only issue he raises on appeal, Rutledge argues that his conviction 

was based on false testimony in violation of Napue v. Illinois, 360 U.S. 264 

(1959). Prior to trial, one of the prosecutors and two agents interviewed Nancy 

Gapen, the manager of the property that the clinic leased. The prosecutor 

recorded notes from the interview on his laptop, including a note that stated, 

“Masses of traffic, knowing it was a pain med center; my bias was the dude’s 

[sic] from Nigeria, having gone through what I saw at Estate Lane; more 

sensitized to the issues[.]” Later, when the prosecutor reviewed his notes in 

preparation for trial, he could not remember Gapen having said anything 

regarding a bias. The prosecutor asked the two agents who had accompanied 

him during the interview whether they could recall what was said, and neither 

of them could remember Gapen saying anything like what was written in the 

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prosecutor’s notes. The prosecutor also asked Gapen, and she stated that she 

did not remember saying anything like what the prosecutor had written. Even 

though no one could remember that statement being said, the prosecutor 

disclosed the note to defense counsel. 

At trial, on direct examination, the prosecutor tried to clear up any 

confusion by explicitly asking Gapen whether she had a bias against Nigerians, 

to which she responded, “No.” During cross-examination, counsel for Okechuku 

asked her whether she had expressed a bias towards Nigerians during a 

meeting with the prosecutor. She responded, “No, I did not.” Later, outside the 

presence of the jury, Oti and Okechuku moved to strike Gapen’s testimony on 

the ground that she falsely testified that she did not have a bias against 

Nigerians. Rutledge joined the motion. The district court denied the motions 

to strike, but permitted defense counsel to recall Gapen so they could crossexamine her about her purported bias. 

Rutledge now argues that the government violated Napue in not striking 

Gapen’s testimony. We review Rutledge’s challenge for plain error.13

“In order to establish a Napue violation, the defendant must show (1) the 

statements in question are actually false; (2) the prosecution knew that the 

statements were false; and (3) the statements were material.” United States v. 

 

13 The parties disagree as to whether the abuse of discretion or plain error standard 

of review should apply to this issue. Rutledge argues that the abuse of discretion standard 

applies because, at the conclusion of Gapen’s testimony, the defense asked that her testimony 

be stricken because she had allegedly falsely testified about her bias. However, at no point 

did Rutledge or the other defendants allege that the government knew Gapen testified falsely 

in violation of Napue. Further, Rutledge did not object to the district court’s finding that the

prosecutor acted properly and in good faith. Because Rutledge never alleged that the 

government knew Gapen testified falsely—an element under Napue—we review Rutledge’s 

Napue argument for plain error. See Hernandez-Martinez, 485 F.3d at 273. However, even if 

we were to determine that Rutledge preserved his challenge under Napue and were to review 

his argument under an abuse of discretion standard of review, we would conclude that he 

does not prevail under that standard.

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Haese, 162 F.3d 359, 365 (5th Cir. 1998). Rutledge has failed to satisfy any of 

these three prongs. First, Rutledge has not shown that Gapen’s testimony that 

she harbors no bias against Nigerians is actually false. None of the people 

present when the notes were taken remember Gapen actually making the 

statement and Gapen testified under oath that she did not have a bias. Second, 

even if Gapen’s testimony was actually false, Rutledge has not shown that the 

government knew that her testimony was false. The prosecutor told the district 

court that he doubted that Gapen actually said the statement and the district 

court concluded that the prosecutor was credible and acted in good faith. Third, 

Rutledge has not shown that the false statement was material.14 Even if 

Gapen’s statement was excluded, Gapen’s testimony was cumulative of other 

evidence at trial and there was sufficient evidence presented at trial of 

Rutledge’s guilt. 

IV. Deliberate Ignorance Instruction

Okechuku, Oti, and Iwuoha argue that the district court erred by giving 

the jury a deliberate ignorance instruction, thus allowing the jury to conclude 

that each of them knowingly joined the conspiracy if it found that they 

“deliberately closed [their] eyes to what would otherwise have been obvious to 

[them].” Okechuku, Oti, and Iwuoha contend that the instruction is 

inappropriate in conspiracy cases and also that the instruction was not 

supported by the evidence.

In the district court, Appellants only objected to the deliberate ignorance 

instruction on the basis that the instruction was inappropriate in conspiracy 

cases. At no time did Appellants argue in the district court that the evidence 

 

14 The Supreme Court has defined “material” in terms of a “reasonable probability” of 

a different outcome if the evidence or testimony was excluded. Kyles v. Whitley, 514 U.S. 419, 

434 (1995). 

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did not support the instruction. Accordingly, we review for abuse of discretion 

Appellants’ argument that the deliberate ignorance instruction is 

inappropriate in conspiracy cases. See United States v. Fuchs, 467 F.3d 889, 

901 (5th Cir. 2006). We review for plain error Appellants’ argument that the 

evidence presented at trial did not support giving the instruction to the jury. 

See United States v. Scott, 159 F.3d 916, 923 (5th Cir. 1998). 

We reject Appellants’ first argument that a deliberate ignorance 

instruction cannot be given in conspiracy cases. We have held that the 

deliberate ignorance instruction is consistent with the elements of conspiracy. 

See United States v. Inv. Enters., 10 F.3d 263, 269 (5th Cir. 1993) (“To the 

extent that the instruction is merely a way of allowing the jury to arrive at the 

conclusion that the defendant knew the unlawful purpose of the conspiracy, it 

is hardly inconsistent with a finding that the defendant intended to further the 

unlawful purpose.”). Indeed, we have consistently upheld deliberate ignorance 

instructions in the conspiracy context, so long as sufficient evidence supported 

the instruction. See Scott, 159 F.3d at 924 & n.6 (citing cases); see also, United 

States v. Brown, No 16-3033, slip op. at 4 (5th Cir. Sept. 13, 2017) (collecting 

conspiracy cases where deliberate ignorance instruction was properly given). 

Regarding Appellants’ second argument, the proper factual basis for the 

deliberate ignorance instruction exists “if the record supports inferences that 

(1) the defendant was subjectively aware of a high probability of the existence 

of illegal conduct; and (2) the defendant purposely contrived to avoid learning 

of the illegal conduct.” Fuchs, 467 F.3d at 902. “In deciding whether the 

evidence reasonably supports the jury charge, the court reviews the evidence 

and all reasonable inferences that may be drawn therefrom in the light most 

favorable to the government.” Id. at 901. 

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“We have often cautioned against the use of the deliberate ignorance 

instruction.” Mendoza-Medina, 346 F.3d at 127. In United States v. Skilling, 

we noted that such an instruction should be given only in “‘rare’ instance[s]” 

and observed:

The concern is that once a jury learns that it can convict a 

defendant despite evidence of a lack of knowledge, it will be misled 

into thinking that it can convict based on negligent or reckless 

ignorance rather than intentional ignorance. In other words, the 

jury may erroneously apply a lesser mens rea requirement: a 

“should have known” standard of knowledge.

Skilling, 554 F.3d at 548–49, rev’d on other grounds, 561 U.S. 358 (2010). “The 

instruction is appropriate only in the circumstances where a defendant claims 

a lack of guilty knowledge and the proof at trial supports an inference of 

deliberate indifference.” United States v. Kuhrt, 788 F.3d 403, 417 (5th Cir. 

2015). 

Appellants argue that the instruction was inappropriate because, with 

the evidence before it, the jury had the choice of deciding whether Appellants

were actually aware of the pill mill activities or actually not aware of the 

activities. We agree. “[T]he district court should not instruct the jury on 

deliberate ignorance when the evidence raises only the inferences that the 

defendant had actual knowledge or no knowledge at all of the facts in 

question.” Mendoza-Medina, 346 F.3d at 133–34. The government has failed to 

cite to specific evidence in the record that demonstrates that Okechuku, Oti, 

or Iwuoha purposely contrived to avoid learning of the pill mill activities. This 

showing is necessary as to each defendant to justify the use of the deliberate 

ignorance instruction. A boilerplate deliberate ignorance instruction that 

applies to all defendants in a case is inappropriate absent a showing that the 

proper factual basis exists as to each defendant. See Fuchs, 467 F.3d at 902.

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Where the government relies on evidence of actual knowledge, the deliberate 

ignorance instruction is not appropriate. Kuhrt, 788 F.3d at 417.

Rather than being a case of deliberate ignorance, the government’s case 

against Okechuku, Oti, and Iwuoha was that they actually knew of the pill mill 

operations taking place at the clinic.15 As to Okechuku, the evidence 

demonstrated that he kept incredibly close tabs on the clinic, watching 

surveillance video remotely as well as frequently reviewing the amount of cash 

the clinic brought in each day and the high number of patients that his clinic 

saw—a number of patients that the government expert testified would have 

been “impossible” for a provider practicing within the normal scope of 

professional practice to see. The evidence also showed that Okechuku was well 

aware of the frequent presence of Jerry Reed and his cohorts at the clinic and

of the clientele Jerry Reed brought in. Okechuku met several times alone with 

Jerry Reed and Ezenagu in his office. Critically, Ezenagu testified that 

“Okechuku knew from day one” that Jerry Reed was bringing illegitimate

patients to the clinic. 

The government’s case as to Iwuoha was also that he had actual 

knowledge of the pill mill scheme. The government presented evidence that 

even though Iwuoha was not licensed to practice medicine, the clinic paid him 

more than eight times the amount he was paid at his other job as an 

anesthesiologist technician. The evidence at trial showed the short, four-toeight-minute examinations that Iwuoha had with his patients. Of the 87 

patients that Iwuoha saw in a two-day sample period, he prescribed all 87 of 

them hydrocodone. Ezenagu testified that he saw Jerry Reed go into Iwuoha’s 

 

15 Indeed, at oral argument, the government stated that there was “overwhelming 

evidence as to actual knowledge” as to appellants. 

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office to meet with Iwuoha, and that based on Ezenagu’s experience at the 

clinic, he believed Iwuoha knew what Jerry Reed and the other drug dealers 

were doing with the drugs from the clinic. 

Finally, the government’s case as to Oti was also that she had actual 

knowledge of the pill mill scheme. The government presented evidence at trial 

that Oti had worked for a pill mill in the past and was therefore familiar with 

how they operated. An undercover agent testified that she was treated by Oti 

and that Oti watched television during the entire examination and never 

touched her. Oti’s patient visits were consistently short and her medical notes 

were sparse. There was also evidence that Oti was familiar with Jerry Reed 

and knew what he was doing, including video evidence of her meeting with 

Jerry Reed in her office and records showing that they had spoken on the phone

at least three times. Further, Ezenagu testified that, based on his time and 

experience at the clinic, he believed Oti knew what Jerry Reed and his cohorts 

were doing at the clinic. Critically, as to each Okechuku, Iwuoha, and Oti, the 

government presented testimony of other clinic staff members who had

considerably less medical training and experience than the appellants who 

testified that they knew that the clinic was operating as a pill mill. 

Even though it was error for the district court to give the deliberate 

ignorance instruction when the government’s theory was that Okechuku, Oti, 

and Iwuoha actually knew of the pill mill operation, we have held “that giving 

the instruction is harmless where there is substantial evidence of actual 

knowledge.” Kuhrt, 788 F.3d at 417; see also United States v. St. Junius, 739 

F.3d 193, 204–05 (5th Cir. 2013) (“Even if the district court errs in its decision 

to give the deliberate ignorance instruction, any such error is harmless where 

substantial evidence of actual knowledge is presented at trial.”). That is the 

situation here. As discussed above, there was ample evidence presented at 

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trial, including Ezenagu’s testimony, that Okechuku, Oti, and Iwuoha each 

knew of the illegal purposes for which Jerry Reed and others used the clinic’s

services. Therefore, we conclude that any error in using the instruction was 

harmless and that Okechuku, Oti, and Iwuoha cannot show that the district 

court plainly erred in giving the instruction. Kuhrt, 788 F.3d at 418 (“[T]here 

was testimony that Appellants were actual participants in the illegal activity. 

Therefore, the error was harmless.”).

We emphasize once again, however, that the deliberate ignorance 

instruction should rarely be given. Kuhrt, 788 F.3d at 417; United States v. 

Faulkner, 17 F.3d 745, 766 (5th Cir. 1994); United States v. Ojebode, 957 F.2d 

1218, 1229 (5th Cir. 1992); see also United States v. Cartwright, 6 F.3d 294, 

301 (5th Cir. 1993) (“Because the deliberate ignorance instruction may confuse 

the jury, the instruction should rarely be given.”). The instruction is not a 

failsafe mechanism that the government can implement to relieve itself of 

proving the mens rea requirement of a crime. See Kuhrt, 788 F.3d at 417 (“The 

proper role of the deliberate ignorance instruction is not as a backup or 

supplement in a case that hinges on a defendant’s actual knowledge.”). We 

caution the government that, while this instance of misapplying the deliberate 

ignorance instruction amounted to harmless error, that will not always be the 

case. 

V. Challenges to Sentencing

Okechuku argues that the quantity of drugs attributed to him for 

purposes of sentencing was excessive. At sentencing, Okechuku was held 

accountable for all of the prescriptions written at the clinic because he was the 

clinic’s owner and operator and its only licensed physician. The presentence 

report (PSR) calculated that Okechuku was responsible for 1,314,300 

hydrocodone pills, 39,289 Xanax pills, and 5,558 units of Promethazine with 

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Codeine. After calculating a marijuana equivalent, Okechuku was ultimately 

held accountable for 999.99 kilograms of marijuana.16

Okechuku preserved this challenge by objecting to the PSR’s drugquantity determination. Therefore, we review the district court’s calculation of 

the quantity of drugs—a factual determination—for clear error. United States 

v. Betancourt, 422 F.3d 240, 246 (5th Cir. 2005). We will deem the district 

court’s factual findings clearly erroneous only if, based on the entirety of the 

evidence, we are left with the definite and firm conviction that a mistake has 

been committed. United States v. Akins, 746 F.3d 590, 609 (5th Cir. 2014). 

Okechuku first argues that the quantity of drugs attributed to him is 

excessive because the government failed to prove that all of the clinic’s patients 

who were given prescriptions were given them without a legitimate medical 

purpose. Okechuku cites to evidence that the clinic treated legitimate patients 

in addition to the patients Jerry Reed brought in. Id. However, just because a 

patient was not brought in by Jerry Reed does not mean that the prescription 

issued to that patient was legitimate. The district court found that all of the 

clinic’s prescriptions were issued outside the scope of professional practice and 

without a legitimate medical purpose. Because there is evidence that all of the 

visits with patients lasted 4–8 minutes, that few, if any, notes were taken, and 

that clinic employees prescribed hydrocodone to almost every patient, the 

district court’s finding is “plausible in light of the record as a whole” and is 

 

16 When an offense involves several types of controlled substances, the quantities of 

differing controlled substances are combined using a marijuana equivalent. See USSG § 

2D1.1, comment. (n.8(B)). Using this method, the PSR determined that the three controlled 

substances were the equivalent of 1,316.79 kilograms of marijuana—the hydrocodone was 

converted to 1,314,000 grams of marijuana, the Xanax to 2455 grams, and the Promethazine 

with Codeine to 34.73 grams. Okechuku was ultimately held accountable for only 999.99 

kilograms, however, because the combined weight of all Schedule III substances is capped at 

999.99 kilograms of marijuana. See USSG § 2D1.1, comment. (n.8(D)). 

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therefore not clearly erroneous. United States v. Coleman, 609 F.3d 699, 708 

(5th Cir. 2010). 

Okechuku also argues that there were many prescriptions issued 

without his knowledge or authorization, for which he should not be held 

responsible. Okechuku cites Ezenagu’s testimony that Jerry Reed sometimes 

paid clinic employees to provide extra prescriptions. However, this argument 

is unpersuasive because those prescriptions that were issued without 

Okechuku’s knowledge would not have been included in the clinic’s seized 

records upon which Okechuku’s total drug quantity was based. 

Finally, Okechuku argues that the PSR should not have relied on Agent 

Pekala’s determination of quantities because he is not a medical doctor and 

therefore cannot make the determination as to which prescriptions were 

medically necessary. However, Pekala did not ultimately determine whether 

the prescriptions were medically necessary—the jury made this determination 

after considering substantial evidence showing that the clinic operated as a pill 

mill. An expert is not required to make this determination. See United States 

v. Armstrong, 550 F.3d 382, 388–89 (5th Cir. 2008), overruled on other grounds 

by United States v. Balleza, 613 F.3d 432, 433 (5th Cir. 2010) (“[E]xpert 

testimony is not always required in order to show that a physician is acting for 

other than proper medical purposes.”). 

Even assuming arguendo that there was an error at sentencing in 

calculating Okechuku’s drug quantity, any such error was harmless. In order 

to have any effect on Okechuku’s base offense level, the 1,316.79 kilograms of 

marijuana equivalent for which Okechuku was held accountable would have 

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to have been reduced to less than 700 kilograms of marijuana equivalent.17

Therefore, almost half of all of the clinic’s prescriptions would need to be 

deemed legitimate in order to reduce Okechuku’s sentence. However, the 

evidence does not support this low number. Therefore, we conclude that the 

district court did not err in calculating Okechuku’s drug quantity amount.18

VI. Conclusion 

For the foregoing reasons, the district court’s judgment and sentence are 

AFFIRMED. 

 

17 The district court determined a base offense level of 30 based on the already reduced 

999.99 kilograms of marijuana, which was “at least 700 kilograms, but less than 1,000 

kilograms of marijuana.” USSG § 2D1.1(c)(5). 

18 Oti and Iwuoha both dispute the district court’s application of the sentencing 

enhancement under U.S.S.G. § 2D1.1(b)(1), arguing that it is unconstitutional to base a 

defendant’s sentencing guidelines calculation on acquitted conduct. But, as they concede, the 

issue is foreclosed. United States v. Watts, 519 U.S. 148, 157 (1997) (holding that “a jury’s 

verdict of acquittal does not prevent the sentencing court from considering conduct 

underlying the acquitted charge, so long as that conduct has been proved by a preponderance 

of the evidence”); see also United States v. Grace, 640 F. App’x 298, 300 (5th Cir. 2016) (“Watts

continues to remain controlling law.”).

 Case: 16-10386 Document: 00514180895 Page: 31 Date Filed: 10/03/2017