Case: 16-14802 Date Filed: 07/17/2017 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-14802
Non-Argument Calendar
________________________
D.C. Docket No. 6:14-cr-00005-PGB-GJK-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VALENTINE OKONKWO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(July 17, 2017)
Before WILLIAM PRYOR, JULIE CARNES and JILL PRYOR, Circuit Judges.
PER CURIAM:
Case: 16-14802 Date Filed: 07/17/2017 Page: 2 of 5
Valentine Okonkwo appeals his convictions for conspiring to distribute and
for distributing oxycodone. 21 U.S.C. §§ 846, 841(a)(1), 841 (b)(1)(C). Okonkwo
challenges the admission of testimony from an investigator about Okonkwo’s
internet pharmacy business; the denial of his request for an instruction on Federal
Rule of Evidence 404(b); and the sufficiency of the evidence for his conviction for
distributing oxycodone to Ivette Desantiago. We affirm.
Even if we were to assume that the district court erred by admitting
testimony from an investigator that Okonkwo falsely denied filling prescriptions
submitted over the internet, that error was harmless in the light of the
overwhelming evidence of Okonkwo’s guilt. See United States v. Phaknikone, 605
F.3d 1099, 1109 (11th Cir. 2010). The government presented evidence that
Okonkwo, a licensed pharmacist, conspired to distribute and distributed oxycodone
by filling prescriptions with knowledge that they had been fabricated or “that a
physician [had] issued the prescription without a legitimate medical purpose or
outside the usual course of professional practice.” See United States v. Joseph, 709
F.3d 1082, 1094 (11th Cir. 2013).
Several witnesses testified that Okonkwo honored fraudulent prescriptions.
When Emily Bird presented to Okonkwo prescriptions that she had altered by
changing the drug or quantity of oxycodone prescribed, Okonkwo told her to “do a
better job.” Bird remained a regular customer, even though Okonkwo charged her
2
Case: 16-14802 Date Filed: 07/17/2017 Page: 3 of 5
high prices, because he never called the physician listed on the prescription and did
not always require Bird to produce identification. Tessa Lynn Francavilla filled
counterfeit prescriptions for oxycodone routinely at Okonkwo’s pharmacy, and
when she was escorted by her forger, Neil Calegari, Okonkwo asked Francavilla
why she had “to do that” and forbade her from bringing Calegari to the pharmacy
again. Jennifer Kennedy and Robyn Jones paid Okonkwo cash to fill prescriptions
of oxycodone for groups of straw purchasers that the two women transported to the
pharmacy, and Kathleen Cabrera, who owned a salon in the area, noticed that
carloads of customers visited Okonkwo’s pharmacy.
Okonkwo’s computer records revealed that he dispensed predominately
oxycodone, was paid in cash, and filled prescriptions written by doctors whose
practices were far away and whose patients were from out of state. A jury readily
could infer from Okonkwo’s odd transactions and his remarks to customers that he
knew the prescriptions he filled were fraudulent and did not serve a legitimate
medical purpose. See United States v. Steele, 178 F.3d 1230, 1236 (11th Cir.
1999). In the light of the evidence against Okonkwo, we cannot say that the
investigator’s testimony had a substantial or injurious effect or influence on the
jury. See Phaknikone, 605 F.3d at 1109.
The district court did not abuse its discretion when it refused to give the
pattern jury instruction for Federal Rule of Evidence 404(b) and instead gave
3
Case: 16-14802 Date Filed: 07/17/2017 Page: 4 of 5
precise instructions that “substantially covered” Okonkwo’s defense theory. A
“refusal to give a proffered instruction only constitutes reversible error if: (1) the
requested instruction was a correct statement of the law, (2) its subject matter was
not substantially covered by other instructions, and (3) its subject matter dealt with
an issue . . . that was so important that failure to give it seriously impaired the
defendant’s ability to defend himself.” United States v. Dean, 487 F.3d 840, 847
(11th Cir. 2007) (internal quotation marks and citation omitted). To ensure that the
jury considered the evidence about Okonkwo’s internet pharmacy to determine his
knowledge and absence of mistake, see Fed. R. Evid. 404(b)(2), the district court
informed the jury that “this case is not about pharmaceutical malpractice or
negligence, none of which constitute a crime” and instructed the jury that it had to
find Okonkwo “knowingly fill[ed] prescriptions for a controlled substance outside
the usual course of pharmaceutical practice or for other than legitimate medical
purposes.” The district court also gave an instruction consistent with Okonkwo’s
closing arguments that he “was an incompetent pharmacist but not a criminal
pharmacist” and “he [did not] recognize[] there were red flags” revealing that the
prescriptions for oxycodone were counterfeit or did not serve a legitimate medical
purpose. The district court reiterated that “Okonkwo’s position [is] that . . . [his]
distributions and dispensations were a result of mistake, negligence and
incompetence on his part,” and it instructed the jury to find Okonkwo “not guilty”
4
Case: 16-14802 Date Filed: 07/17/2017 Page: 5 of 5
if they found that he “did not knowingly and intentionally disobey or disregard the
law.” Okonkwo cannot establish that the failure to give the pattern jury instruction
for Rule 404(b) “seriously impaired [his] ability to defend himself.” See Dean, 487
F.3d at 847.
Ample evidence supported Okonkwo’s conviction for distributing
oxycodone to Desantiago. Desantiago submitted to Okonkwo a prescription forged
by Gerald Murray that was of such poor quality that, in the words of Officer Deana
Dipaola of the Altamonte Springs Police Department, it “looked totally different”
and “stuck out . . . as you touched or felt [it].” Desantiago used a prescription that
Murray had designed on his computer using a template, which he had printed on
stock paper used for resumes and cut out using scissors. Murray testified that he
had been unconcerned about the quality of the document because he had been told
that “the pharmacist was well aware that they were fake prescriptions.” A jury
reasonably could find that Okonkwo knew Desantiago’s prescription was
counterfeit based on its appearance. See Steele, 178 F.3d at 1236.
We AFFIRM Okonkwo’s convictions.
5