United States v. Lillian Akwuba (11th Cir. August 2021)

The Federal Docket

August 17, 2021

Drug Offenses/Elements – In a “pill mill” prosecution, the government does not have to prove that a patient prescribed controlled substance did not have a legitimate medical need for the prescription.

Healthcare Fraud/Elements – A defendant may be found guilty of healthcare fraud based on their participation or knowledge of medical claims being submitted for patient appointments where controlled substances are illegally prescribed.

Jury Instructions/Directed Verdict – A jury instruction stipulating to a disputed fact does not amount to a directed verdict for the government unless it relates to an element of the charged offense or any of the facts necessary to establish each of those elements.

Jury Instructions/Right to Present Defense – A trial court errs in instructing the jury that the parties have stipulated on a disputed fact but the error does not violate the defendant’s constitutional rights unless it deprives the defendant of their ability to present their theory of the defense.

Lillian Akwuba was convicted of conspiracy to distribute controlled substances and commit healthcare fraud in a “pill mill” case where doctors, nurses, and office administrators were charged. Akwuba was a nurse practitioner who worked with several of the doctors involved in the investigation and ran her own practice. At trial, she argued that the Government experts, who opined her prescriptions were illegitimate, were basing their opinions on incomplete records. Had the experts considered Akwuba’s handwritten notes, she argued, they would have reached a different conclusion. The jury found her guilty, and she was sentenced to 120 months in prison.

On appeal, Awkuba raised several arguments, including that the evidence was insufficient to convict her of the charged offenses. Regarding the substantive drug counts based on her own prescriptions, she argued that the evidence was insufficient because the Government did not present testimony from any patients stating that they did not need the medications she prescribed for them. The Eleventh Circuit rejected this argument, holding that the Government was not required to prove that the patients involved did not need the prescriptions in question. The Court held there was sufficient evidence based on co-conspirator testimony that at least some of the patients who received controlled substances did not need them, and that Akwuba’s prescription practices were improper based on dosage and falsifying prescription notes.

Regarding the drug conspiracy counts, based on her work with a doctor, the Court held the evidence was sufficient based on that doctor’s testimony and plea of guilty to the same alleged drug conspiracy. The Court also noted that Akwuba testified, leaving the jury free to reject her testimony in favor of the doctor’s.

Regarding the healthcare fraud counts, based on billing government healthcare programs for “office visits where controlled substances were illegally prescribed,” the Court held there was sufficient evidence of Akwuba’s knowledge regarding the false claims, since she stipulated that she was aware of the claims being submitted, participated in their submission, and knew that the claims were based on prescriptions that were, according to the Government’s expert, not medically necessary. The same evidence used to convict Akwuba of the drug counts was used to form the basis of the healthcare fraud counts.

Akwuba also challenged an instruction by the judge to the jury that she argued amounted to a directed verdict. The judge instructed the jury based on a joint stipulation that the patient files in evidence pertained to Akwuba’s patient visits and not those with other providers at the clinic, but added an unstipulated statement that the defense had been provided records involving other providers prior to trial. Akwuba argued that this instruction amounted to a directed verdict on a disputed fact based on her “missing records” defense.

The Court rejected this argument, holding that the jury instruction did not amount to a directed verdict “because it does not relate to an element of any offense Akwuba was charged with” or any “of the facts necessary to establish each of those elements.” Here, the Court reasoned, the jury could have simply determined that Akwuba’s missing notes would not have made a difference.

However, the Court recognized there was a “closer question” regarding whether the jury instruction violated Akwuba’s right to present a defense. The Court held that the trial court was “unquestionably wrong to instruct the jury that the parties stipulated to something that they did not stipulate to.” While the was error, however, the Court concluded it did not rise “to the level of a constitutional violation” because Akwuba was still able to present her theory of defense to the jury.

Citing the difficulty “for a litigant to persuade a court of appeals to reverse a district court’s ruling” on evidentiary issues, the Court also rejected Akwuba’s arguments that the trial court plainly erred in excluding a prescription pad that Akwuba argued was stolen and would show someone else forged the prescriptions, plainly erred in limiting Akwuba’s cross-examination of the Government’s expert regarding his change of opinion regarding another defendant, and plainly erred in admitting expert testimony from four Government experts who Akwuba argued had testified as to her intent.

On appeal from the Middle District of Alabama
Opinion by Wilson, joined by Rosenbaum and E. Carnes

Click here to read the opinion.

Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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