Pharmacist Intern convictions upheld

US v. Agyekum:  Investigation of illegal distribution of oxycodone pills in West Virginia lead officials to A+ Care Pharmacy in Barboursville, WV, as a source of drugs.  The defendant and his wife opened their pharmacy in 2012, and while Patricia was actually the credentialed pharmacist, her husband exclusively ran the business, “controlling everything.”  Officials in the investigation sent a confidential informant to the pharmacy, who twice made controlled purchases of drugs.   Officials also investigated the defendant’s banking practices; eventually investigators obtained a search warrant for the pharmacy recovering tens of thousands of dollars and pills hidden there.

Agyekum agreed to plead guilty to two counts of structuring cash transactions to evade reporting requirements, and also agreed not to contest the judicial forfeiture of over $2 millions, his Lexus station wagon and his residence.  Further, the PSR included enhancements for Agyekum’s role as an organizer or leader, as well as abusing a position of public or private trust, yielding a guidelines range of 57-71 months.  At sentencing, Agyekum objected to the enhancements, all of which were overruled.  On appeal, Agyekum averred that the enhancements were improper, and that the district court failed to ensure that his waiver of rights with regard to the forfeiture of property was knowingly and intelligently made.

The Fourth Circuit held that the enhancements were supported by the defendant’s role in the drug distribution activity and were properly applied.  The majority found that the offenses of conviction, structuring his cash transactions to evade reporting requirements, were temporally and qualitatively linked to the illegal drug distribution activities, so that the transactions would be considered relevant conduct.  Further, the panel described Agyekum’s conspiratorial activities to be broader than the individual drug transactions that occurred, solidifying the drug deals as conduct that went hand-in-hand with the structuring offenses.  As to whether the relevant conduct indicated Agyekum had a leadership role and abused a position of trust, the testimony of Agyekum’s wife that he ran the business and directed her activities as well as the pharmacy activities justified, to the majority, the application of the leadership-role enhancement.  Moreover, the panel found that Agyekum’s “clear abuse of his positions of trust” with his drug distributor and the state board of pharmacy justified the enhancement for position of trust.

Dissenting in part, Judge Wynn found that Agyekum did not occupy a position of trust as he was not a pharmacist, rather an intern, and he did not have a fiduciary-type relationship with the state board of pharmacy or the drug distributor, unlike his wife, who actually was a pharmacist.