Lead Opinion
In Sеptember 2010, a federal grand jury charged Dennis Caroni, Gerard M. DiLeo, Theodore G. Aufdemorte, Jr.,
Caroni and Aufdemorte formed Global Pain in January 2004 to operate and manage pain management clinics under various names in the New Orleans area. In 2005, Caroni opened a Global Pain pain management clinic in Pensacola that stayed open for approximately two weeks. The DEA began surveilling one of Global Pain’s clinics in November 2005 and identified five separate incidents in which individuals who had previously been convicted of controlled substances charges visited the clinic, In January and March 2006, two undercover DEA agents tried to obtain prescriptions for controlled substances from Global Pain without a legitimate medical reason but neither agent was successful.
In February 2008, the Government obtained search warrants for the offices of two of Global Pain’s clinics and for Caro-ni’s grandmother’s house. A jury trial was conducted from October 19, 2011, through November 23, 2011. Dr. Ted Parran, a government-retained expert in the field of pain management, addiction medicine, and the prescription of controlled substances, reviewed 96 patient files that were seized by the government. Dr. Parran opined that the prescription practices of Global Pain were dangerous, not consistent with the usual course of medical practice, and not for legitimate medical purposes. Another Government pain expert witness, Dr. Robin Hamill-Ruth, reviewed files from the Pensacola clinic and testified that the prescribing done there was unsafe and; outside the usual course of medical practice. Dr. Carol Warfield, Caroni’s expert in pain management, reviewed the same patient files that Dr. Parran had reviewed. She concluded that the pain medications were prescribed to patients for legitimate medical reasons and were done so within the accepted standard of care of the practice of pain medicine.
Former office staff testified that followup visits at the clinics took an average of five minutes per patient. At some point during the conspiracy, patients were able to pay for . two two-week prescriptions, with the second prescription post-dated, in a single visit; they would pick up. the second .prescription later, .without having to-see . a doctor. Global Pain eventually required patients to make two clinic visits per month where the second visit would entail the patients receiving their prescriptions after only briefly seeing a doctor. During the week after Hurricane Katrina occurred, Global Pain allowed its patients to.- pick up their prescriptions without having to see a doctor or enter the clinic as long-as they paid-for their prescriptions.
Global Pain employees testified that patients were charged between $100 to $400 per visit based on whether they were receiving Schedule II drugs or Schedule III, IV, or V drugs. Caroni called the clinics regularly, though later on he was rarely physically present, and he instructed one of his employees to give him daily updates of the cash totals. He established a patient referral program where patients could earn a free visit if they referred five patients to Global Pain. Caroni’ told at least two employees that what patients did with the prescriptions was not his business. One doctor testified that he walked away from Global Pain’s $500,000 annuаl salary without any future job prospects because he did not want to be a part of a “pill mill.”
• Global Pain did not accept insurance claims, and patients had to pay in cash until 2007, at which point it also began accepting some payments by check, money . order, and credit card. At some point in time, Global Pain’s money was kept at Caroni’s grandmother’s house for approximately one month, because the clinic did not have a bank account. It frequently changed banks because bank managers closed the company’s accounts as a result of Caroni’s behavior.. Caroni and DiLeo opened approximately 57 bank accounts at 15 different banks during the course of the conspiracy. Caroni, or other employees on his behalf, deposited large sums of cash into the bank accounts almost daily, and sometimes into more than.two separate bank accounts. Each deposit was always under $10,000 to avoid the reporting requirements. In total, Global Pain deposited approximately $8,557,205 from January 2004 through December 2007. After a jury trial, Caroni and DiLeo were found guilty of both drug and money laundering conspiracies, and Pastorek was found guilty of the drug conspiracy. The Defendants raise numerous challenges to the judgment of the district court. We address eаch in turn.
I. DISCUSSION
A. Venue
DiLeo argues that the Government failed to prove venue and that the district court erred when it refused to allow the defense to argue it was missing or submit a jury instruction on the issue.
Later that same day, the court told the defense that it could not argue venue to the jury and then refused to instruct the jury on venue. At first, she stated that they could bring a proposed instruction later but then she scolded the defense for not raising it sooner and stated that they could not bring the issue in a proposed instruction at all.
DiLeo argues that the district court committed structural error when it prohibited defense counsel from arguing the Government failed to prove venue, and reversible error when it refused to give the requested jury instructions on venue.
We have stated that venue is an essential element in a criminal case and should not be treated as a mere technicality. United States v. Snipes,
A conspiracy may be prosecuted in the district where it was formed or - in any district where an overt act was committed in furtherance of its objects. An overt act may be that of only a single one of the conspirators and need not be itself a crime. An individual conspirator need not participate in the overt act in furtherance of the conspiracy. Once a conspiracy is established, and an individual is linked to that conspiracy, an overt act committed by any conspirator is sufficient.
United States v. Schlei,
While the district court erred, the evidence of venue was uncontroverted, making that error harmless. After the Defendants' entered into their conspiracy, Caroni, DiLeo, and two others made plans to open the clinic in Pеnsacola. Caroni and DiLeo hired and trained Dr. Klug to be the prescribing physician. The same unlawful practices used in New Orléans were carried over to the Pensacola Global clinic. When Dr. Klug asked Dr. DiLeo for guidance because of his inexperience with respect to pain management, Dr. Di-Leo instructed him to just prescribe what the patieiits had previously been receiving. And with respect to physical exams, Dr. Klug testified that he merely listened with a stethoscope to the patients’ hearts and lungs. Expert Hamill-Ruth testified that Klug’s prescribing was outside of the standard of care and inconsistent with the operation of a legal clinic. Caroni opened two bank accounts in Pensacola in the name of the clinic in which money from the clinic was deposited.
Defendants also procured facilities to house the Pensacola clinic and operated it for eight days. Defendants sent several employees to either run the office or help train those working there. They procured an apartment for one of those employees, whom they sent from the office in Coving-ton to work at the new clinic. Even though the three Defendants never traveled to the Northern District of Florida, it was abundantly clear that it was part of their plan and conspiracy. Although there was strong evidence that the activities in Pensacola were in fact criminal, venue exists under our case law “in any district where an overt act was committed in furtherance' of its objects ... [and the] overt act ... need not be itself a crime.” Schlei,
B. Deliberate ignorance
Pastorek argues that the district court erred when it instructed the jury on deliberate ignorance.
This court gives wide discretion to the style and wording of instructions on deliberate ignorance. Such an instruction is justified when the facts “support the inference that the defendant was aware- of- a high probability of the existence of the fact in question and purposely contrived to avoid learning all of the facts in- order to have a defense in the event of a--subsequent prosecution.” United States v. Rivera,
Stone thus stands for the principie that a jury, when presented with two alternate theories, will take the instructions to heart and apply them. Here,- there was evidence that the Defendants ignored evidence that their patients were abusing the prescribed substances: they did not order routine and inexpensive drug screens to ensure that the patients were complying with the prescriptions, they refilled prescriptions early without questioning,' they did not administer physical'exams to ensure an underlying pathology, and they wrote blanket prescriptions based upon previous doctors’ scripts. Additionally, as discussed below, there was sufficient evidence to'support the alternative theory. ■ Thus, it was not error to instruct on deliberate ignorance.
C. Prejudicial Evidence
Caroni argues that his motion for mistrial should have been granted after the jury was. improperly exposed to evidence about two patients’ death (i.e., the deaths of J.P. and E.A.A.).
The prosecution stated, during opening argument, that. Defendants were responsible for the deaths and had ignored letters from the patients’ parents asking them to ceаse giving the patients drugs. The jury heard from one patient’s (J.P.’s) girlfriend who was with ;him when he had a seizure and crashed his car into a tree, .killing him. The Government,put the state trooper who. responded to the accident on the stand, as well as the coroner who issued the death certificate but did not do the autopsy. The director of the lab testified and introduced into evidence the toxicology report, and opined that J.P.’s level of methadone was sufficient to cause death. After receiving that toxicology report, J.P.’s autopsy report was modified to reflect that the cause of death was an overdose. However, the director of the toxicology lab later testified that he had not conducted the tests himself or done the analyses underlying the report, causing the defense'to move to strike his testimony. Similarly,' the other victim’s (E.A.A.’s) daughter testified about her mother’s drug addiction and death. After a friend also testified, the prosecution admitted that it did not have the person who performed the toxicology report available to testify, and therefore 'the' prosecution admitted' that it could not próve the cause of death.
At that point, the Justice Department advised the prosecution that it should concede the inadmissibility of the autopsy evidence. The court then instructed the jury that it would not be asked to consider whether the deaths resulted from the conspiracy charge, and that it must not consider that part of the indictment. The court instructed the jury to disregard all of the evidence introduced about the deaths. In- particular, the jury was instructed as follows: '
[Y]ou will not be asked- in this case to consider whether death resulted to [J.P.] and/or [E.A.A.] from the conspiracy charged in the indictment. And you must not consider this part of the indictment in any way for any purpose during your deliberations. As a result, you are instructed that you must disregard all of the. evidence introduced in the trial regarding the circumstances surrounding and the cause of the deaths of [J.P.] and ■ [E.A.A,]. This would include all of the testimony- of the following witnesses: the toxicologist, Robert Middleberg; the - coroner, Tom Wilson; the Alabama Trooper,- James Ray; and the medical examiner, Dr; Emily Ward.
You must also disregard portions of the testimony of the following witnesses: Lisa Riddle, who was [E.A.A.’s] daugh- ■ ter; Joyce Bohannon, who we heard from yesterday afternoon, who was [E.A.A.’s] friend; and then, Hollie Thompson, who was;[J.P.’s] flaneé. You must, disregard the portions of their testimony that specifically referred to the ■ circumstances surrounding' and the cause of their deaths.’
Docket 656:25:3-27:13 (format changed). This contemporaneous instruction was repeated almost verbatim in the cоurt’s final instructions to the jury.
Caroni also identifies as prejudicial letters from a patient’s parent to the clinic that expert Dr. Parran read into evidence. The letters asked the clinic to stop prescribing to her son because he almost died of an overdose. The government argued
Caroni had moved for a mistrial after the government rested, which the court denied. Caroni argued that the evidence was so prejudicial that, even though curative instructions were given, they could not cure the damage done.
We review a district court’s refusal to grant a mistrial for an abuse of discretion. United, States v. Trujillo,
■ In United States v. Ignasiak,
Unlike in Ignasiak, the prejudicial evidence about the deaths in this case was excluded, and the jury was
Because the evidence about the deaths was excluded, there was no Confrontation Clause violation and thus we need not employ the more stringent standard of review that the. court used in Ignasiak. Because the court gave clear .instructions to the jury to disregard the evidence, we instead review for whether the evidence was so highly prejudicial as to be incurable. Perez,
Our careful review of the entire record persuades us that the jury’s exposure to the evidence relating to the two deaths and to the challenged letters was not so highly
In its closing arguments, the government did not comment at all on the death evidence that was ruled inadmissible. Moreover, with respect to both deaths, the jury was also exposed to significant, evidence that indicated either that the death was not in fact caused by the defendants’ prescriptions or that eroded the prejudicial effect of the inadmissible evidence. With respect to J.P., the jury was exposed to evidence that he had obtained 120 methadone tablets from a Tennessee clinic a week before his fatal automobile accident, thus eroding any causal link between J.P.’s death and these defendants’ prescriptions. The jury could very readily, and most probably actually did, follow the judge’s instruction to disregard all of thе evidence tending to link the drugs prescribed by these defendants as a cause of J.P.’s death. With respect to E.E.A., the jury was also exposed to evidence that she had cervical cancer, thus eroding the prejudicial impact of the jury’s exposure to the inadmissible evidence with respect to her death, and making it easier for the jury to follow the judge’s instruction. Moreover, there was ample other evidence that the strength and combination of the drugs being prescribed by these defendants, and their mo-dus operand^ had the potential to cause serious harm;' land ample other evidence that defendants’ prescriptions had actually caused overdoses. In light of the totality of the - evidence in this case, we do not believe that' the inadmissible evidence that the jury'was clearly instructed to disregard was so-'highly prejudicial as to be incurable.
With respect to the totality of the evidence in .this case, unlike the Ignasiak case, the evidence of these defendants’ guilt was strong. Numerous patients and former employees testified that the drugs were prescribed notwithstanding the complete absence of, or only cursory, physical examinations. They also testified that patients were able to obtain prescriptions despite obvious indications of addiction, abuse of the drugs, and doсtor-shopping. There was evidence that the number of patients the doctors saw each day was very large; that patients were offered bonuses for referrals; and that patients’ dosages were increased upon request (i.e., not based upon demonstrable need) and in spite of drug screening indicating that the patients were not taking the drugs and, in some cases, were taking street drugs. There was significant evidence from employees, including Dr. Klug, that defendants Caroni and DiLeo actually said that what the patients did with'the drugs after they left the office was none of their business or concern. And there was evidence that patients were selling some of the drugs prescribed, and at least some evidence that co-conspirator Caroni was aware of that. Dr. Klug also testified that, when he sought guidance because of his own inexperience' with pain management, Dr. DiLeo advised him to just prescribe
In sum, we cannot conclude, that the district court abused its discretion in denying defendant’s motion for a mistrial.
D. Sufficiency of evidence — conspiracy
Caroni argues that the evidence was legally insufficient to support his conviction for conspiring with his co-defendants to run an illegitimate practice.
We review questions about the sufficiency of the evidence de novo, “viewing the evidence in the light most favorable to the government, with all reasonable inferences and credibility choices made in the government’s favor.” United States v. Sosa,
Caroni cites no cases that require the Government to show that the entire practice was illegitimate. This would be an unreasonable burden and allow a completely illegal clinic to evade prosecution by having a.few legitimate patients. Rather, the Government needed to prove that there was very substantial illegal activity occurring at the clinic, thus removing any reasonable doubt that unlawful prescriptions were being issued by' mistake or through negligence.
In United States v. Joseph,
The evidence in this case was similar to that in Joseph. As set forth in the immediately preceding Part C. of this opinion, there was ample evidence to support the jury’s verdict. .And while there "was some evidence that the Defendants became more careful about doctor shopping and misuse of prescriptions in the last year of, the clinic, a reasonable jury could have concluded this was a response to the shutting down of other pain management clinics by the DEA and an effort tо evade detection.
E. Sufficiency of evidence — money laundering
Caroni argues that the Government produced insufficient evidence to prove promotion money laundering.
Caroni is correct that our precedent requires the Government to show that the deposited money was intended promote the conspiracy. In United States v. Calderon, we reversed a conviction because the Government only showed that the Appellant knew that the money was ill-gained but never put on any evidence that the Appellant intended to do more than conceal the money.
Our United States v. Martinelli, 454 F.3d 1300 (11th Cir.2006), decision approved a district court’s instruction that the jury had to find that the defendant engaged in the financial transaction with “the intent to promote the carrying on of such specified unlawful activity” and that “[t]he term with the intent to promote the carrying "on of the specified unlawful activity mеans that the defendant must havé conducted or attempted, to conduct the financial transaction for the purpose of facilitating or making easier or helping to bring about the specified unlawful activity as has been defined.” Id. at 1318. We stated that with such instructions, “the jury could not have found Martinelli guilty if it believed the financial transactions were undertaken for legitimate, non-fraudulent business expenses.” Id.
Here, the jury" was instructed with the same pattern jury instructions as in Marti-nelli. The agent, who provided evidence about the monetary transactions testified that the funds at issue were used to pay overhead, rent, and malpractice insurance. Further, in Caroni’s deposition in a civil case, which was entered into evidence, he testified that they used the funds from Global Pensacola to pay “bills and whatnot.” Thus, the proceeds of the unlawful
F. Indictment amendment
Caroni , argues that his Fifth Amendment rights were violated when the jury was charged in the disjunctive but the indictment read in the conjunctive.
Caroni points to our decision in United States v. Cancelliere,
We have еxplained that a constructive: amendment “takes place ‘when the essential elements of the offense contained in the indictment are altered to broaden the possible bases .for conviction beyond what is contained in the indictment.’” United States v. Mozie,
Caroni’s argument fails for several reasons, This case is more like Mozie than Cancelliere. . The disjunctive instruction was not error. Section 1306.04(a) of Title 21 of the Code of Federal Regulations provides an exception to the prohibitions found in § 841 that ban the sale and provision of certain drugs. That regulation permit's prescriptions for controlled substance’if they are “issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice.” Thus, under the plain language of the regulation, in order
G. Caroni’s sentence
1. General verdict precluded sentencing to an underlying object offense.
Caroni asserts.that in a multi-object conspiracy, a general verdict from the jury precludes the court from sentencing the defendant to an underlying object offense unless the court finds beyond a reasonable doubt that, the defendant conspired to commit that particular object offense. He argues that his sentences should be limited by his three-year statutory maximum sentence for Count 1 because the jury did not specifically find that he was guilty of conspiring to distribute Schedule II drugs. He also contends that the district court erred by failing to separately calсulate his offense level for Count 2 under U.S.S.G. § 2S1.1 to determine what his highest guideline range was. ' He argues that the court’s use of § 2D1.1 to calculate his offense level for Count 2 in conjunction with the application of the statutory maximum sentence for Count 2 is unconstitutional.
Pursuant to 18 U.S.C. § 1956, a person convicted for money laundering faces a maximum sentence of 20 years’ imprisonment. 18 U.S.C. § 1956(a)(l)(B)(ii). The Sentencing Guidelines dictate that closely related counts shall be grouped together for sentencing ’ purposes. U.S.S.G. § 3D1.2. In a case where the defendant is convicted of money laundering and convicted of the underlying offense from which the laundered funds were derived, the counts shall be grouped pursuant to § 3D1.2(c), and the highest offense level shall be applied. U.S.S.G. § 2S1.1, comment. (n. 6); U.S.S.G. § 3D1.3(a). While typically it is necessary to determine the offense level for each of the counts, the formal determination of the offense level is unnecessary where it is clear that one count cannot have a higher offense level than another. U.S.S.G. § 3D1.3, comment, (n. 2).
. Money laundering offenses are covered by § 2S1.1 of the Guidelines. U.S.S.G. § 2S1.1. Under § 2S1.1, the offense level of the underlying offense from which the laundered funds' were derived is to be applied as long as it can be determined. U.S.S.G. § 2S1.1(a)(1). Offenses involving a conspiracy to distribute controlled substances are covei-ed by § 2D1.1 of the Guidelines. U.S.S.G. § 2D1.1. In determining the drug quantity for purposes of § 2D1.1, types and quantities of drugs not specified in the count of convictions may be considered. U.S.S.G. § 2D1.1, comment. (n. 12)(2011).
Caroni’s claim fails because the district court properly " calculated his guideline range and neither of his sentences exceed
Although Caroni argues that the court should have limited his sentence for Count 2 with his statutory maximum penalty for Count 1, he offers no authority to support this position, and the money laundering guidelines specifically require the use of the drug offense guidelines in cases like this without any directive to alter the respective statutory penalties.
2. Calculation of drug quantity
Caroni challenges the court’s calculation of his drug quantity. He argues that the district court clearly erred in determining the drug quantity based upon his assertion that- many of the drugs were prescribed legitimately and the court was required to exclude those drugs;
This Court reviews the district court’s interpretation of the Sentencing Guidelines de novo and accepts its factual findings unless clearly erroneous. United States v. Jordi,
The district court did not rely on a limited subset of the patient files to conclude that all of the patients received illegitimate prescriptions, ’ but instead analyzed all of the identified patient files to reach the conclusion that all of the prescriptions were not for a legitimate medical purpose and were outside ofithose usual course of medical practice. Thus, with respect to all of the controlled substances for which Caroni was held responsible, the district éourt made a finding of fact that they were not prescribed for a legitimate medical purpose. The evidence showed
Although Caroni argued, that some of the patient flies contained information suggesting that the patients legitimately needed the medication, he offered no reliable evidence to establish that the medications were for a legitimate medical purpose or within the usual course of medical practice. Caroni submitted the conclusions of his expert, witness; Warfield, but the district court correctly noted that the weight of her opinion had to be tempered by the jury’s guilty verdict. Accordingly, the district court-did not clearly err in .determining that a preponderance of the evidence supported the drug quantity specified in the PSI.
3. Substantively unreasonable sentence
Finally, Caroni argues that his sentences .are substantively unreasonable. He contends that the court impermissibly concluded that the conspiracy involved Schedule II drugs. Additionally, he points to the sentencing disparity, between his sentences and those, of his codefendants to argue that the district court made a clear error in judgment. He also argues that the court improperly considered evidence of the patient deaths- - and of Mark Artigues’s
This Court reviews the reasonableness of a sentence under a deferential abuse of discretion standard. Gall v. United States,
The district court must impose a sentence “sufficient, but not greater than necessary, to comply with the purposes” listed in 18 U.S.C. § 3553(a)(2), including the need to reflect the seriousness of the offense, promote respect for the law, provide just punishment for the offense, deter criminal conduct, and protect the public from the defendant’s future criminal conduct. 18 U.S.C. § 3553(a)(2). In imposing a particular sentence, the court must also consider, the nature and circumstances of the offense,-the history and characteristics of -the defendant, the kinds of sentences available, the applicable guideline range, the pertinent policy statements of the Sentencing Commission, the need to avoid unwarranted sentencing' disparities, and the need to provide restitution to victims. 18, U.S.C. § 3553(a)(1),. (3)(7).
“The party challenging the sentence bears the burden to show it is unreasonable in light of the record and thé § 3553(a) factors.” United States v. Tome,
Congress has explicitly provided that there is no limitation on the information concerning “the background, character, and conduct” .of the defendant that a court may consider in determining the appropriate sentences. 18 U.S.C. § 3661. At sentencing,- a court’s factual findings may be based on trial evidence, undisputed statements in the PSI,- or evidence presented at the sentencing hearing. United States v. Wilson,
. First,fthe,district court did not err in considering evidence regarding Artigues or the patient deaths. The Caroni deposition testimony recounted how two Global Pain employees were hired to work at Artigues’s clinic, and the clinic’s earnings went to Caroni, who would then pay Artigues. It was also permissible for the court to consider the evidence of the patient deaths because' that evidence was introduced at' sentencing. Wilson,
As to his argument regarding the consideration of Schedule II drugs in calculating his drug quantity, such consideratiоn is expressly contemplated by the Guidelines. See U.S.S.G. § 2D1.1, comment, (n.12). Likewise, the court’s partial attribution of the consequences the doctors faced to Car-oni is consistent with the determination that he held a leadership role in the offense, and the court stated that it was not absolving the doctors of their own conduct. While Caroni is correct in pointing out that his sentences are significantly higher than those of DiLeo and Pastorek, their sentences are the result of “extraordinary” situations that warranted significant departures. DiLeo initially had a sentencing
By contrast, Caroni’s otherwise applicable guideline range was 292 to 365 months. Under § 5G1.2(d), the court should have imposed his statutory maximum sentences consecutively to approximate his recommended guideline range, which would have resulted in a sentence of 276 months. Thus, his total sentence of 240 months represented a downward variance of 36 months, which is actually greater than the variance that DiLeo received. Accordingly, the disparities in -the sentences are explained by the differences in circumstances between the three defendants.
Finally, Caroni’s sentences are reasonable in light of the record as a whole. The district court thoroughly considered the § 3553(a) factors, the trial evidence, and the arguments of the parties. The court emphasized that it believed strong sentences were warranted based on the seriousness of the offenses and Caroni’s role in perpetuating them. The nature and scope of Caroni’s conduct resulted in the distribution of the equivalency of 16,517.99 kilograms of marijuana and resulted in the laundering of approximately $8,557,205 in funds. Further, his1 240-month sentences represented a downward variance from his applicable guideline range, as discussed above. ■ Given the seriousness and magnitude of the offenses, Caroni’s leadership role in the offenses, and the district court’s consideration of the § 3553(a) factors, Caroni’s sentences are substantively reasonable. Accordingly, this Court affirms Caroni’s sentences.'
AFFIRMED.
Notes
. The indictment against Aufdemorte.was later dismissed'.
. Both Caroni and Pastorek adopt this argument.
. The Defendants did not waive this argument by raising it when they did: "when an indictment contains a proper allegation of venue so that a defendant has no notice of a defect of venue until the Government rests its case, the objection is timely if made at the close of evidence.” United States v. Daniels,
. In Bonner v. City of Prichard,
. Caroni and DiLeo adopt this argument.
. Both Pastorek and DiLeo adopt this argument.
. Both Pastorek and DiLeo adopt this argument.
. • The district court expressly instructed the jury that "negligence, mistake or carelessness is not a sufficient finding of knowledge.”
. DiLeo adopts this argument.
. Both Pastorek and DiLeo adopt this argu-merit.
. The district court employed the 2011 Guidelines because the trial took place that year.
. We also reject Caroni's arguments based on Apprendi v. New Jersey,
. Artigues was the former employee whom Caroni sued when he alleged that Artigues stole the Pensacola clinic from him.
. In Bonner v. City of Prichard,
. Unlike the appellants in this case, Mr. White did not request, a- jury instruction on venue. White,
Dissenting Opinion
dissenting:
It is well-settled that the government bears the burden of proving venue in every criminal case. United, States v. Snipes,
The precise issue that Messrs. Caroni, DiLeo, and Pastorek raise is -not that this is a legally insufficient allegation, or even that the government failed to offer evidence in support of it. . Instead, they argue that because venue is a question of fact, they were entitled to have the jury make a specific finding that either they or one of their co-conspirators committed an overt act in the Northern-District of Florida. • I agree with Messrs. > Caroni, DiLeo, and Pastorek, as well as the majority, that
I part ways with the majority with respect to its holding that the District Court’s error was harmless. I write separately to explain why the District Court’s failure to instruct on venue and restriction of defense counsel’s closing arguments constitute reversible error.
I.'
A defendant in a criminal case has the right to be tried in the district in which the crime was committed. For conspiracy offenses that span more than one district, venue is proper in any district in which the conspiracy was formed or in which a co-conspirator committed an act in furtherance of the conspiracy. Schlei,
Questions of venue are not merely “pedantic, justice-defeating technicalities],” but issues of constitutional magnitude. Green v. United States,
Because it is grounded in our constitution, we havé characterized venue as an “essential element of the government’s proof at trial,” Snipes,
However,- although venue is a question of fact — did the crime take place in the district of prosecution? — our precedent makes clear that a district court is not always required to present this question to the jury. . Compare Bellard v. United States,
We held that- the district court’s failure to provide a venue instruction did not constitute plain error
.First, Count Two-of the indictment charged that White forged the check in the Middle District of Florida. The indictment appears to have, been read to the jury only once, before the jury was sworn, but the trial judge sent a copy of the indictment into the jury room for consideration by the jury during its deliberations. Second, in instructing the jury on the essential elements of forgery, the trial court stated that the government must prove beyond a reasonable doubt “the act of forging the payee’s endorsement on the United States Treasury check..as charged.” Third, White’s counsel argued the territorial, jurisdiction and venue question in his closing argument. Finally, there was sufficient evidence for a jury. to conclude that the forgery occurred in the Middle District of Florida.
Id. at 537.
White’s reasoning is instructive: no separate venue instruction was required because the jury’s guilty verdict necessarily included a finding of proper venuе. In other words, because the indictment alleged offense conduct only in the Middle District of Florida, the jury could not have found the defendant guilty unless it specifically found that the defendant committed an act -within that jurisdiction. See id. Several other circuits have articulated similar rules. See, e.g., United States v. Miller,
' Applying this standard, the District Court erred. The indictment in this case alleged a conspiracy in both the Northern District of Florida and the Eastern District of Louisiana, and the jury’s guilty verdict did not necessarily incorporate a finding that the defendants committed any act — criminal or otherwiser-in the Northern District of Florida. Thus, the District Court should have provided a jury instruc
The majority and I part ways, however, in our application of the harmless error standard. Under Chapman v, California, 386 U.S, 18,
The majority makes much of the “substantial and uncontrovertéd” evidence regarding Global Pensacola. However, while it was not disputed that Mr. Caroni founded Global Pensacola, the ¿relevant question here is whether its establishment was an overt act in furtherance of the conspiracy between Messrs.- Caroni, DiLeo, and Pas-torek such.that it could establish venue in the Northern District of Florida. The evidence on this question was more limited. Global Pensacola oрerated for only two weeks during what was otherwise a four-year conspiracy-, and Mr. Caroni was the only one of the three defendants who had a role in founding the clinic. Indeed, the government presented no evidence whatsoever linking Mr. Pastorek to Global Pensacola.
. To the extent that the majority applies some other harmless error standard, it has no basis in our precedent. And although several of our sister circuits have held that a failure to instruct the jury on venue is harmless error if evidence of venue is "substantial and uncontroverted,” uncontroverted in ' this context takes its literal meaning: not contested at trial. See Martinez,
. I recognize that a co-conspirator may be held responsible for aspects of a conspiracy in which he had no direct involvement. However, the government’s inability to connect Mr. Pastorek to Global Pensacola is undoubtedly relevant to the question we face here — whether the establishment of Global Pensacola was an overt act in furtherance of a conspiracy involving Mr. Pastorek. See United States v. Chandler,