United States v. Otuonye

── United States v. Otuonye ── Case No.: 23-3175 Court: Court of Appeals for the Tenth Circuit Date: April 02, 2026 Category: General Appellate Case: 23-3175 Document: 105-1 Date Filed: 04/02/2026 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit UNITED STATES COURT OF APPEALS April 2, 2026 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________ UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 23-3175 EBUBE OTUONYE, Defendant - Appellant. _________________________________ Appeal from the United States District Court for the District of Kansas (D.C. Nos. 6:22-CV-01101-EFM & 6:18-CR-10085-EFM-1) _________________________________ Beau B. Brindley, (Blair T. Westover, with him on the briefs), The Law Offices of Beau B. Brindley, Chicago, Illinois, for Defendant-Appellant. James A. Brown, Assistant United States Attorney (Duston J. Slinkard, Acting United States Attorney, with him on the briefs), Topeka, Kansas, for Plaintiff-Appellee. _________________________________ Before HARTZ, TYMKOVICH, and BACHARACH, Circuit Judges. _________________________________ HARTZ, Circuit Judge. _________________________________ Defendant Ebube Otuonye was convicted of improperly filling prescriptions for controlled substances and fraudulently seeking reimbursements from Medicaid and Medicare. He filed a motion to vacate his convictions and sentence under 28 U.S.C. § 2255, arguing that his trial counsel was ineffective by failing to object to an  Appellate Case: 23-3175 Document: 105-1 Date Filed: 04/02/2026 Page: 2 instruction on the legality of distributing controlled substances prescribed by a physician. The United States District Court for the District of Kansas granted the § 2255 motion on two counts relating to distribution of controlled substances but denied the motion on two counts relating to healthcare fraud. And it denied Defendant’s motion to reconsider its partial denial. Exercising jurisdiction under 28 U.S.C. § 2255(d), we affirm. I. BACKGROUND A. Indictment, Trial, and Direct Appeal Our prior opinion on Defendant’s direct appeal sets forth the factual background of this case. See United States v. Otuonye, 995 F.3d 1191 (10th Cir. 2021). We repeat only what is necessary to resolve Defendant’s § 2255 appeal. As we wrote, “In October 2014, the [federal Drug Enforcement Administration (DEA)] began receiving phone calls from Wichita-area pharmacists raising concerns about the prescribing patterns of Dr. [Steven] Henson.” Id. at 1196. Investigators determined that an “increasing number of Dr. Henson’s patients had prescriptions filled at Neighborhood [Pharmacy],” which “was a retail pharmacy owned and operated by [Defendant], its pharmacist-in-charge.” Id. at 1197. “Based on the results of the DEA’s investigation, [Defendant] was indicted for conspiring to unlawfully distribute controlled substances under 21 U.S.C. § 846 (Count 1); unlawfully distributing controlled substances under 21 U.S.C. § 841(a)(1), (b)(1)(C), and 18 U.S.C. § 2 (Count 2); and Medicare and Medicaid fraud in violation of 18 U.S.C. § 1347 (Counts 3 and 4).” Id. at 1196. 2  Appellate Case: 23-3175 Document: 105-1 Date Filed: 04/02/2026 Page: 3 In Counts One and Two, Defendant’s distribution of control