United States v. Valentine Okonkwo

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[DO NOT PUBLISH]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
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No. 16-14802
Non-Argument Calendar
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D.C. Docket No. 6:14-cr-00005-PGB-GJK-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

VALENTINE OKONKWO,

Defendant-Appellant.

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Appeal from the United States District Court
for the Middle District of Florida
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(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

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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

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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”

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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.