1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA

v. Criminal Action No. 1 5
- 42 (JEB) TITILAYO AKINTOMIDE AKINYOYENU , Defendant.

MEMORANDUM OPINION Defendant Titilayo Akinyoyenu is a local pharmacist who also ran an online pharmacy.
To obtain a prescription drug from him over the i nternet , customers would place an order and fill out a medical questionnaire. Defendant then paid doctors

– including Co

- Defendant Alan Sal tzman

– to review these questionnaires and issue prescriptions for the ordered drugs , thereby
green - lighting the online pharmaceutical dealings

. In 2015, a grand jury returned an Indictment charging Akinyoyenu and Saltzma n with conspiracy to distribute controlled substances with out valid prescription s and to commit mail fraud by deceiving customers in the process. Akinyoyenu now asks the Court to dismiss the Indictment without prejudice on the basis
that th e grand jur y did not hear the whole truth and , sometimes, even heard false testimony

. As the Court does not see how the misstatements by the Government

– if they are misstatements at
all

– substantially swayed the grand jury, it will deny Defendant ’ s Motion.
I. Background The parties agree on the basic facts

. Akinyoyenu sold drugs , many of which required prescriptions, from his interne t pharmacy between 2005 and 2010. See Mot. at 2; Opp. at 3. Part of his sales model was to have customers fill out medical questionnaires requesting prescriptions when they ordered drugs ; Defendant would then forward those questionnaires to physicians

–2

one of whom was Saltzman

– who would prescribe or refuse to prescribe the sought drugs. See Mot. at 2; Opp. at 3. If approved , the drugs shipped. See Mot. at 2; Opp. at 3

- 7. Beyond this, t he facts get murkier. F or now , the Court focuses on what the Government told the grand jury

. Although the parties did not submit all the relevant transcripts of grand

- jury testimony, the Court relies on their briefs as there is no dispute over the words said

. See Mot. at
4

- 5, 8

- 9 (quoting May 15, 2014, Grand Jury Transcript ); Reply at 3

- 4 (quoting same). First, the grand jury learned that Saltzman approved many prescriptions and denied
ot hers , but the facts are not clear about the total volume of orders

. An FBI a gent testified that Defendant ’ s website received 38,363 prescription

- drug order s
. See May 15, 2014, GJ Tr. at 47. An email from the web site host to the FBI , conversely, counts 57,804 prescriptions approved by Saltzman

. See ECF 65

- 2 (GJ Exh. 48) ; see also ECF No. 6 6 (June 5, 2014, GJ Tr.) at 10 (same)

. The Court need not now resolve this discrepancy. With regard to how many prescriptions Saltzman rejected , the grand jury heard the following:

JUROR: Were any

– not just with Dr. Saltzman, but

in the course of the investigation , were any people ’ s prescription requests ever denied? WITNESS: Yes. JUROR: There were some denied? WITNESS: Yes. PROSECUTOR : About

– about how many? WITNESS: Not

– not very many. I don ’ t know the exact

amount but not many. PROSECUTOR: Well, if we had like 38,363 orders that were

filled

– okay? WITNESS: Yeah. PROSECUTOR: What are we talking about? How many

were declined? WITNESS: I would say under 100

. May 15, 2014, GJ Tr. at 56 (with name alterations)

.3

Second, Saltzman was compensated for filling prescriptions

. The gra nd jury heard about how this worked :

PROSECUTOR: . . . What has the evidence in this case and

investigation shown that motivated Dr

. Saltzman to approve all these scripts online with patients he had never met or examined? WITNESS: Money. PROSECUTOR: How much money? WITNESS: Approximately $7 per approval. PROSECUTOR: Okay. Did Dr. Saltzman get his $7 for

denying the application? WITNE SS: No. PROSECUTOR: He only got $7 if he approved a

prescription? WITNESS: Yes. Id. at 55

- 56 (with name alterations)

. T he grand jury subsequently returned a four

- count Indictment against Akinyoyenu and Saltzman in March 2015 , charging three conspiracy counts relating to distributing drugs without valid prescriptions and one c o nspiracy count of mail fraud. In advance of trial, Akinyoyenu now picks out two instances of prosecutorial misconduct he contends appear in the passages above , which together mandate dismissal of the Indictment

. The Court discusses the legal standard before turning to each instance

. II. Analysis When examining a claim that the grand

- jury proceeding was infected by prosecutorial misconduct , the Court first affords that proceeding “ a presumption of regularity. ” United States v. Mechanick , 475 U.S. 66, 75 (1986). The Court will only consider dismiss ing an indictment if the defendant shows that the prosecutor instituted some error or irregularity

– more than a mere assertion that the prosecutor presented “ i nadequate, unreliable or incompetent evidence. ” United
States v. Borda , 905 F. Supp. 2d 201, 204 (D.D.C. 2012) ; see Fed. R. Crim. P. 12(b)(3)(A)(v)4

(allowing dismissal for “error in the grand

- jury proceeding”)

. The defen dant must “clearly establish[]” such defect with “particularized proof.” Mechanick , 475 U.S. at 75

. Even if a defendant demonstrates misconduct, the age - old rule of harmless error applies.
See Bank of Nova Scotia v. United States , 487 U.S. 250, 254 (1988); see also Fed. R. Crim. P. 52(a). That is, the defendant must also prove “ ‘ that the violation substantially influenced the
g rand jury ’ s decision to indict,’ or [that] there is ‘grave doubt’ that the decision to indict was free
f rom the substantial influence of such violations. ” Bank of Nova Scotia , 487 U.S. at 256 (quoting Mechanick , 475 U.S. at 78). “Dismissal in these circumstances is warranted only when prosecutorial misconduct significan tly infringes on the grand jury’ s abi lity to render an independent judgment.” United States v. Espy , 23 F. Supp. 2d 1, 9 (D.D.C. 1998). Akinyoyenu seeks dismissal of the Indictment without prejudice based on two supposed factual errors , which he thinks wrongly portray Saltzman as a rubber stramp . He first contends that the prosecutor misrepresented “ whether and to what extent Dr. Saltzman denied prescription requests submitted to Apexonline. ” Mot. at 4. The Government concedes that the initial, uncertain estimate by its witness

– “ I don ’ t know the exact amount but not many

. . . . I would say under 100”

– was too low. See May 15, 2014, GJ Tr. at 56; see also Opp. at 3. What follows this concession is a numbers game of how many prescriptions Saltzman actually rejected. The
Government crunches the website data and says 328 prescriptions

. See Opp. at 4

- 5. Akinyoyenu retorts that this data has 688 entries for denied prescriptions ( though some entries ’ order numbers are duplicative )

. See Reply, Exh. 1 (Prescr iption

- Rejections Spreadsheet). He also suggests other orders wer e in effect denied because 36 customers were on a “ blacklist. ” See Mot. at 7

- 8. This numerical discrepancy presents no wide chasm. The difference between an estimated 100 or some 300 or 600 denials (plus a 36

- person blacklist) is inconsequential when5

placed next to the roughly 38,000 (or perhaps 57,000) prescriptions approved

– the denials are droplets in a bucket of water

. Although the Government ’ s elicited testimony was perhaps incautious, i t is difficult to see how this alleged error or confusion could have changed the grand jury’s calculus. The theory underlying the Indictment was not that Saltzman was a careless
doctor who happened to overprescribe ; it was that , by prescribing drugs based only on short online questionnaires, he practiced medicine absent any doctor

– patient relationship whatsoever.
See Indictment, Count One, ¶ 20 (describing litany of resulting medical transgressions) ; see also Espy , 23 F. Supp. 2d at 9

- 10 ( finding, after examining indictment, that it satisfactorily tracked
the elements of the crime ). In this context, t hat Saltzman did the right thing hundred s of time s but the wrong thing tens of thousand s of times would have been no defense at all. Akinyoyenu next objects that the Government falsely presented evidence that he “gave
Dr. Saltzman a financial incentive to approve prescription requests by compensating him only for issued prescriptions and not for denials.” Mot. at 4; s ee May 1 5 , 2014 , GJ Tr. at 55

- 56.
A kinyoyenu claims that Saltzman’ s payment letters show instead that the doctor was paid $7 per

“ consult ” (and not approval ) and $3.50 per “refill. ” Mot., Exh. 4 (July 21, 2010 , Letter, enclosing Payment Letters ) at 3 . An FBI Report prepared following an interview with Saltzman
indicated that he believed “ [h]e was paid a rate of $7.00 per prescription . . . whether he issued

an approval or a denial of a customer order.” Mot. , Exh. 3 (FBI 302 Report) . Akinyoyenu thus
argues Saltzman derived no comparative advantage from approving orders. Defendant ’ s reading of the facts is a generous one, and the document s he cites hardly
amount to the “ particularized proof ” of a defect in the proceedings that is required

. Mechanick , 475 U.S. at 75

. The use of the word “consult” here does not clearly signify payment for both approvals and denials; in fact, it is an obvious misnomer as Saltzman apparently never consulted6

with patients. The FBI Report, moreover, describes Saltzman’s own uncertainty : “He never questioned the amounts of the paychecks” bec ause he “trusted [Akinyoyenu] and never had a reason to question him.” In other places, it also directly contradicts Defendant’s position. The Report recounts that if Saltzman wanted his paychecks itemized , Akinyoyenu had agreed to “send the number of ap provals ,” implying t hat payment was pegged to prescription approvals

. See FBI 302 Report (emphasis added).
As with the first issue, the Court does not see how any error as to the compensation scheme could have swayed th e grand jury to reach a different outcome

. Even assuming Saltzm an was paid for every order sent his way, financial incentives to approve still existed

. Most obviously, had Saltzman denied scores of prescriptions

– painless to do, as he never even saw patients

– one would think Akinyoyenu would look elsewhere for doctors

. In other words, Saltzman had a motive to adhere to the old adage: What ’ s good for you is good for me. Beyond this, t here was yet another built

- in incentive

– Saltzman naturally could receive the tack

- on benefit of refills only if he first issued prescription approvals

. The motive, therefore, was there. This Court, in sum, concludes that n either instance of alleged prosecutorial misconduct

“ may have had ‘ substantial influence ’ on the outcome of the proceeding ,” Bank of Nova Scotia , 487 U.S. at 256 (quoting Kotteakos v. United States , 328 U.S. 750, 765 (1946))

. III. Conclusion For the reasons set forth above , the Court will deny Defendant ’ s Motion in a separate Order to be issued this day.
/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge Date: August 3, 2016