United States v. Okafor

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UNITED STATES OF AMERICA, Plaintiff, v. NDUBUISI JOSEPH OKAFOR, Defendant.

CRIMINAL ACTION No. 23-116 (JDB)

United States District Court, District of Columbia

September 23, 2024

MEMORANDUM OPINION

JOHN D. BATES, United States District Judge.

Defendant Ndubuisi Okafor faces charges centered around allegations that he used his medical license to illegally distribute controlled substances. In particular, he is charged with conspiracy to unlawfully distribute controlled substances in violation of 21 U.S.C. § 846; maintaining drug-involved premises and aiding and abetting in the same in violation of 21 U.S.C. § 856(a)(1) and 18 U.S.C. § 2; and twenty-seven counts of unlawful distribution of controlled substances and aiding and abetting in the same in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. See Superseding Indictment [ECF No. 34] (“Indictment”) at 5-9. Trial is scheduled for October of this year.

Currently before the Court is a raft of motions from both sides. Okafor moves to dismiss the indictment and to suppress certain evidence. See Okafor's Mot. to Dismiss With Mem of P. & A. [ECF No. 41] (“Mot. to Dismiss”); Mot. to Suppress Evid. Derived From Computers, Phone, iCloud and/or Social Media Acct. Searches [ECF No. 40] (“Mot to Suppress”).^[1]The government counters with motions of its own, seeking permission to use certain evidence at trial and asking the Court to preclude Okafor from engaging in trial tactics the government views as inappropriate. See U.S.'s Mot. to Admit Evid. Intrinsic to the Charged Conduct and Pursuant to Fed.R.Evid. 404(b) [ECF No. 37] (“Mot. to Admit Evid.”); U.S.'s Suppl. to its Mot. to Admit Intrinsic Evid. & Pursuant to Fed.R.Evid 404(b) [ECF No. 63] (“Suppl. to Mot. to Admit Evid.”); U.S.'s Mot. in Lim. to Impeach the Def. with his Prior Conviction Pursuant to Fed.R.Evid. 609 & Specific Instances of Conduct Under Rule 608 [ECF No. 39] (“Mot. to Impeach”); U.S.'s Omnibus Mot. in Lim. [ECF No. 38] (“Omnibus Mot.”).

The motions are now fully briefed and ripe for resolution.

Background^[2]

Okafor, a District of Columbia-based doctor, headed a national drug distribution ring beginning around May 2021 and ending upon his arrest in April 2023. See Indictment at 5; Mot. to Admit Evid. at 1. To do so, Okafor leveraged his status as a physician, prescribing oxycodone and promethazine with codeine-both controlled substances under the Controlled Substances Act, 21 U.S.C. § 801 et. seq.; see 21 C.F.R. §§ 1308.12(b)(1)(xiv), 1308.15(c)(1)-to co-conspirators and individual patients in pursuit of profit rather than treatment. See Indictment at 5.

In broad strokes, the scheme went something like this. Co-conspirators sent Okafor prescription requests with patients' names, dates of birth, pharmacy addresses, and drug types and quantities. Indictment at 6. Despite knowing that the patient information was frequently false, Okafor would oblige. Id. at 7. In exchange for each prescription, the co-conspirators would pay Okafor cash in the range of $180 to $300. Id. The co-conspirators would then use or sell the substances. Id.

To avoid detection by state authorities, Okafor often issued the prescriptions across state lines, and sometimes prescribed the same medications to the same purported patients in many states and listing different home addresses-or, conversely, to the same co-conspirators in the same states under different names. Id.; Mot. to Admit Evid. at 6-7, 9. Okafor frequently changed the listed first name to avoid detection while retaining the real patient's last name, in the hope that otherwise skeptical pharmacists would think the co-conspirators were merely picking up family members' prescriptions. Mot. to Admit Evid. at 6. All told, Okafor issued prescriptions in this manner in at least thirty-seven states and the District of Columbia, despite being licensed to prescribe only in the District of Columbia. Id. at 1, 3, 22.

As to the individual patients, the story is simpler: from his medical office, Okafor would prescribe large quantities of controlled substances “on demand” to patients without any meaningful examination, and again often in exchange for cash payment. Id. at 2, 6, 9. He would sometimes issue these prescriptions to his patients' real names and other times to pseudonyms to enable them to collect more prescriptions than would otherwise be possible. Id. at 8-9. For one patient, for instance-whom the government intends to present as a witness at trial-Okafor wrote at least nineteen oxycodone and promethazine with codeine prescriptions within a three-month period. Id.

The government indicted and arrested Okafor in April 2023 and filed a superseding indictment a year later.

Analysis

I. Motion to Dismiss

Okafor moves to dismiss the indictment on two primary grounds: that the Controlled Substances Act is unconstitutionally vague as applied to him, and that it in fact cannot apply to him given his status as a registered doctor. Each ground for dismissal can be rejected easily. In ruling on each, the Court is mindful that it must presume the truth of the government's proffered facts. United States v. Park, 938 F.3d 354, 358 (D.C. Cir. 2019); see also United States v. Ballestas, 795 F.3d 138, 148-49 (D.C. Cir. 2015).

A. The law is not unconstitutionally vague as applied to Okafor.

Okafor first contends that the Controlled Substances Act is unconstitutionally vague as applied to him. Mot. to Dismiss at 4. The argument draws on the precept that a conviction violates due process “if the statute under which it is obtained fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement.” Holder v. Humanitarian L. Project, 561 U.S. 1, 18 (2010) (quoting United States v. Williams, 553 U.S. 285, 304 (2008)). But to survive such a challenge, a statute's scope need not “be clear in every application.” Id. at 21; see also United States v. Sandlin, 575 F.Supp.3d 16, 30 (D.D.C. 2021). Instead, the statute need only provide fair notice “as applied to the particular facts at issue.” Humanitarian L. Project, 561 U.S. at 18. So long as Okafor's conduct was “clearly proscribed,” he “cannot complain of the vagueness of the law as applied to the conduct of others.” Id. at 18-19 (quoting Vill. of Hoffman Ests. v. Flipside, Hoffman Ests., Inc., 455 U.S. 489, 495 (1982)).

Okafor's alleged conduct was clearly proscribed. As relevant here, the Controlled Substances Act makes it a federal crime to “knowingly or intentionally” distribute or dispense a controlled substance, “[e]xcept as authorized.” 21 U.S.C. § 841(a). There is no dispute that Okafor in fact distributed or dispensed controlled substances. This case therefore turns on the authorization exception, under which registered doctors like Okafor are “authorized” to prescribe controlled substances without violating the statute, see id. § 822(b), so long as they issue the prescription “for a legitimate medical purpose” and “acting in the usual course of [their] professional practice,” 21 C.F.R. § 1306.04(a). If they prescribe controlled substances outside of those guardrails, however, registered doctors are “subject to the penalties provided for violations” of the Controlled Substances Act. Id.

According to the indictment, Okafor issued prescriptions “regardless of [his] patient's individual diagnosis and for periods of time that were inconsistent with accepted use,” Indictment at 6; “exchange[d] controlled substance prescriptions for cash” with the knowledge that his coconspirators “would pick up and divert the controlled substances” for profit, id.; knowingly prescribed to false names and addresses, id. at 7; falsified medical records to cover up his unlawful activities, id. at 7-8; and more. These activities are not borderline cases that lend themselves to a good-faith dispute over proper pain management. They fall in the heartland of the statute, which aims to criminalize those who sell drugs “not for legitimate purposes, but primarily for the profits to be derived,” with a particular concern for “the diversion of drugs from legitimate channels to illegitimate channels.” United States v. Moore, 423 U.S. 122, 135 (1975) (cleaned up).

Moreover, this statute is particularly ill-suited for an as-applied vagueness challenge. Cf. United States v. Robinson, 253 F.Supp.3d 1, 3 (D.D.C. 2017) (collecting cases rejecting vagueness challenges to § 841). As Okafor notes, to convict him under § 841, the government will need to convince a jury that he “knowingly or intentionally acted in an unauthorized manner.” Ruan v. United States, 142 S.Ct. 2370, 2376 (2022). So Okafor did not violate the statute unless he was “aware that what he [did was] precisely that which the statute forbids,” such that he was “under no necessity of guessing whether the statute applie[d] to him.” Screws v. United States, 325 U.S. 91, 104 (1945); see, e.g., United States v. McHugh, 583 F.Supp.3d 1, 21 (D.D.C. 2022). Because “a scienter requirement may mitigate a law's vagueness,” Vill. of Hoffman Ests., 455 U.S. at 499, Okafor fails to establish that his (by hypothesis) knowingly unauthorized conduct was not clearly proscribed.

B. Doctors are vulnerable to prosecution under the Controlled Substances Act.

Next Okafor points out that the standard the government is using to prosecute him comes from a regulation interpreting the Controlled Substances Act (“CSA”), not the language of the CSA itself. See Mot. to Dismiss at 7 (citing 21 C.F.R. § 1306.04(a)). And, he continues, that regulation is unlawful because Congress did not intend registered doctors to be subject to prosecution under the CSA. See id. at 13 (“One cannot both (1) have a DEA registration . ....