UNITED STATES OF AMERICA v. MELVIN ROBINSON, a/k/a Sweets
No. 98-3304
United States Court of Appeals for the Third Circuit
February 12, 1999
1999 Decisions, Paper 39
Hon. Alan N. Bloch, District Judge; GREENBERG, SCIRICA, and CARMAN, Circuit Judges
Precedential or Non-Precedential: Precedential; Argued January 12, 1999
Filed February 12, 1999
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 98-3304
UNITED STATES OF AMERICA v. MELVIN ROBINSON, a/k/a Sweets
Melvin Robinson, Appellant
On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Crim. No. 97-64)
District Judge: Hon. Alan N. Bloch
Argued January 12, 1999
BEFORE: GREENBERG and SCIRICA, Circuit Judges, and CARMAN,* Chief Judge, Court of International Trade
(Filed: February 12, 1999)
The Colonial Building
205 Ross Street
Pittsburgh, PA 15219
Attorney for Appellant
*Honorable Gregory Carman, Chief Judge of the United States Court of International Trade, sitting by designation.
Harry Litman
United States Attorney
Bonnie R. Schlueter (argued)
Assistant United States Attorney
633 United States Post Office & Courthouse
Pittsburgh, PA 15219
Attorneys for Appellees
GREENBERG, Circuit Judge.
I. INTRODUCTION
On July 24, 1997, a jury in the Western District of Pennsylvania found the defendant, Melvin Robinson, guilty of conspiring to distribute heroin in violation of
On appeal, Robinson does not challenge the jury‘s finding of guilt. Thus, he does not argue that the evidence did not support a finding that he conspired to distribute heroin. Instead, he argues that venue was improper, and he disputes the district court‘s imposition of the 20-year mandatory minimum sentence. Robinson contends in particular that the Western District of Pennsylvania was an improper venue because the jury may have convicted him for his participation in a conspiracy in Ohio without finding that he or any co-conspirator committed an overt act in furtherance of the conspiracy in the Western District of Pennsylvania. He also argues that
The district court rejected Robinson‘s challenge to venue in a motion for judgment of acquittal after discharge of jury. At the conclusion of the sentencing hearing, the district court found that Bettina Allison died of a heroin overdose from heroin that Robinson delivered to Ronald Bungar, who in turn delivered it to Allison and her boyfriend, Michael Minchoff. Thus, the court found that the 20-year mandatory minimum sentence was required.
We conclude that Robinson waived his objection to venue by failing to raise the issue before the jury reached a verdict and that in any event venue was proper. We further conclude that Congress did not intend the phrase “if death or serious bodily harm results from the use of such substance” in
II. FACTUAL AND PROCEDURAL HISTORY
A. Factual History
On November 29, 1995, Melvin Robinson sold three-eighths of a gram of heroin to Ronald Bungar in Youngstown, Ohio. Robinson was a long-time heroin addict, who over the years had cultivated a relationship with a group of addicts from Greenville, Pennsylvania, including Bungar and Michael Minchoff. Often one addict would make the 45-minute trip from Greenville to Youngstown for a small amount of heroin to share with or sell to another user in Greenville.
While Bungar and Tofani were at Allison‘s apartment, Allison began preparing for injection the heroin Bungar had bought from Robinson. Meanwhile, Minchoff injected a “speed-ball”2 from Robinson‘s heroin and some cocaine Bungar had obtained earlier. After about 15 minutes, Bungar and Tofani left Allison‘s apartment and they never saw Allison or Minchoff alive again. Bettina Allison died of a heroin overdose sometime between 1:00 a.m. and 5:00 a.m. on November 30, 1995, and Minchoff died of a heroin overdose sometime later that day or within the next few days.
B. Procedural history
On April 16, 1997, a grand jury in the Western District of Pennsylvania indicted Robinson for conspiring to distribute heroin in violation of
The court held sentencing hearings on April 16, 1998, and May 7, 1998. It concluded that Robinson distributed heroin that resulted in Allison‘s, but not Minchoff‘s, death. Thus,
Inasmuch as the court‘s findings and conclusions at the sentencing hearing are important we quote them at length:
One: Defendant engaged in a conspiracy with other persons, including Ronald Bungar, from on or about November 29th, 1995, to on or about November 30, 1995, to distribute and possess with the intent to distribute less than 100 grams of a mixture and substance containing a detectable amount of heroin.
Two: Defendant on multiple occasions prior to November 29, 1995, had delivered drugs to Bungar, which drugs were delivered to others in Defendant‘s presence.
Three: During the operation of the conspiracy, Defendant obtained heroin from an unknown source and co-conspirator in Ohio which Defendant delivered to Bungar.
Four: The heroin obtained by Bungar from Defendant was of high purity.
Five: During the operation of the conspiracy, Defendant and Bungar and Dolores Tofani used a portion of the drugs delivered while at the Defendant‘s residence and in Defendant‘s presence. Six: During the operation of the conspiracy, Bungar and Tofani, with the Defendant‘s knowledge, left the Defendant‘s residence with some of the heroin that Bungar had obtained from Defendant. And Bungar delivered part of that heroin to Bettina Allison and Michael Minchoff at Allison‘s apartment in Greenville, Pennsylvania.
Seven: Bungar and Tofani remained at Allison‘s apartment for approximately 10 to 15 minutes. Eight: During that 10- to 15-minute period, Minchoff injected some of the heroin in, quote, speed ball, unquote, form. That is, combined with cocaine while in the presence of Bungar and Tofani.
Nine: During the aforementioned 10- to 15-minute period, Bungar and Tofani observed Allison preparing some of the heroin in question for injection.
Ten: Based upon their previous drug dealings, it was reasonably foreseeable to Defendant that Bungar would deliver these drugs to others.
Eleven: The delivery of the heroin by Bungar to Minchoff and Allison was in furtherance of the conspiracy of which Defendant was a member, within the scope of the Defendant‘s agreement and reasonably foreseeable in connection with the criminal activity the Defendant agreed to undertake.
Twelve: Allison was never seen alive again after Bungar and Tofani left her apartment in the early morning hours of November 30, 1995.
Thirteen: Various persons spoke with Minchoff over the telephone on November 30, 1995.
Fourteen: Michael Minchoff was seen alive throughout the day and early evening of November 30, 1995, in Greenville, Pennsylvania.
Fifteen: On December 2nd, 1995, officers with the Greenville-West Salem police department, responding to reports that Allison had missed two consecutive workdays without reporting, found the bodies of Allison and Minchoff in Allison‘s apartment. Sixteen: The approximate time of the death of Allison was between 1 a.m. and 5:15 a.m. on November 30th, 1995; and the approximate time of death of Minchoff was between 9 p.m. on November 30th, 1995, and 9:45 a.m. on December 2nd, 1995.
Seventeen: The December 2nd, 1995, autopsy performed on the body of Allison confirmed that she died from a heroin overdose and that she also had cocaine, codeine, ethanol, and cannobinoids present in her blood.
Eighteen: An autopsy performed on the body of Minchoff on December 2nd, 1995, confirmed that he also had died of a heroin overdose.
Nineteen: The death of Allison was caused by a heroin overdose as a result of the heroin delivered to her by Bungar during the operation of the conspiracy.
Twenty: The death of Minchoff was caused by a heroin overdose resulting in whole or in part from the heroin delivered to him by Bungar during the operation of the conspiracy.
The Court finds that in accordance with the above findings of fact, the Government has proved by clear and convincing evidence that the death of Bettina Allison resulted from the heroin which Defendant delivered to Ronald Bungar.
With regard to the death of Michael Minchoff, however, the Court finds that the Government has failed to prove by clear and convincing evidence that Minchoff‘s death resulted in whole or in part from the heroin which Defendant delivered to Ronald Bungar.
Accordingly, the Court finds that application of the death enhancement set forth in Section 2D1.1(a)(2) of the United States sentencing guidelines imposing a base offense level of 38 is appropriate.
Furthermore, the Court finds that Defendant is subject to a minimum term of imprisonment of 20 years in accordance with
Title 21 of the United States Code, Section 841(b)(1)(C) .
Robinson filed a motion to correct the sentence on May 8, 1998, that the court denied on May 11, 1998. This appeal followed.
III. DISCUSSION
A. Venue
We address Robinson‘s venue argument first.3 On this point we are exercising
Notwithstanding the foregoing provisions, we have recognized that a defendant can waive the provision for an appropriate venue by not raising a timely contention that venue was mislaid. See United States v. Polin, 323 F.2d 549, 556-57 (3d Cir. 1963); United States v. Gallagher, 183 F.2d 342, 346-47 (3d Cir. 1950). The government argues that Robinson waived any objection to venue by not raising it before the completion of the government‘s case in chief. However, we have held that a defendant‘s failure to object before the government rests only constitutes a waiver if the defect in venue is clear on the face of the indictment. See United States v. Turley, 891 F.2d 57, 61 (3d Cir. 1989).
Where, as here, the offense described in the indictment is a conspiracy that allegedly was completed in the district in which the government is prosecuting the defendant, a defect in venue may not be clear on the indictment‘s face, and would become clear only once the government rests its case. Therefore, we have held that “where there is a proper allegation of venue in the indictment, but the government fails to prove that allegation at trial, a challenge to venue in a motion for acquittal is timely.” United States v. Sandini, 803 F.2d 123, 127 (3d Cir. 1986). Thus, Robinson could have timely objected to venue at the close of the government‘s case, and was not required to object before the close of the government‘s case. Id.
Robinson contends that under Sandini he sufficiently preserved his objection to venue in his motion for judgment of acquittal five days after the jury announced its verdict. We, however, agree with the Courts of Appeals for the First and Fifth Circuits that a defendant must raise the issue of improper venue before the jury returns a verdict. See United States v. Parrish, 736 F.2d 152, 158 (5th Cir. 1984) (per curiam) (“Thus, the courts have consistently ruled that a claim of venue must be raised at least prior to a verdict.“); United States v. Cordero, 668 F.2d 32, 44 (1st Cir. 1981) (same). Therefore, by raising the issue for the first time after the jury reached a verdict, Robinson waived any objection to venue.
However, even if we were to find that Robinson timely challenged venue, we would reject his argument. The United States can bring a prosecution in any district where a conspiracy was begun, continued, or completed. See
To establish a conspiracy, the evidence must show that the alleged conspirators shared a unity of purpose, an intent to achieve a common goal, and had an agreement to work together to achieve that goal. See United States v. Powell, 113 F.3d 464, 467 (3d Cir.), cert. denied, 118 S.Ct. 454 (1997). Here, the evidence established that Robinson and Bungar had a relationship based upon the use and distribution of heroin. Bungar estimated at trial that Robinson had sold him heroin approximately 80 or 90 times during this relationship. After purchasing heroin from Robinson, Bungar sometimes finished it at Robinson‘s house but at other times he left with heroin to share with or sell to others in Greenville, Pennsylvania.
The events of November 29, 1995, were consistent with Bungar‘s and Robinson‘s earlier
Finally, it is clear that the court and both parties focused the jury on the distinction between a conspiracy and a buyer/seller agreement. Both the government and Robinson spent considerable time explaining the difference between the two types of agreements, and the district court correctly charged the jury on the matter. In fact, the jury asked for and received clarification of the court‘s instruction regarding a buyer/seller agreement. In view of all the circumstances, it is clear that the government established that there were overt acts in furtherance of the conspiracy in the Western District of Pennsylvania so venue properly was laid there.
B. The “results from” language of section 841(b)(1)(C)
Our review of a district court‘s rulings on sentencing matters concerning the interpretation of a statute requiring a mandatory minimum sentence is plenary. See United States v. Collado, 975 F.2d 985, 990 (3d Cir. 1992). Here, we exercise plenary review because, notwithstanding Robinson‘s challenge to the sentence, he concedes “that clear and convincing evidence proves that but for the use of heroin that Robinson delivered to Bungar, Allison would not have died.” Br. at 15. Robinson argues that for
We have two preliminary observations on the sentencing issue. First, it is not clear to us why the district court‘s findings with respect to Minchoff led it to conclude that the mandatory minimum sentence was not applicable by reason of his death. Second, even though the government does not contend that the district court made a proximate cause finding with respect to Allison‘s death, it seems to us that its findings certainly came quite close to satisfying that standard. Nevertheless, we take the case on the basis the parties present it, that only Allison‘s death is involved and proximate cause was not established.
Although we have not decided the sentencing issue, the Court of Appeals for the Fourth Circuit in United States v. Patterson, 38 F.3d 139 (4th Cir. 1994), held that
Patterson held that the “plain language” of
We will not either. After all, our role is to “give effect to Congress‘s intent.” Idahoan Fresh v. Advantage Produce, Inc., 157 F.3d 197, 202 (3d Cir. 1998). Where, as here, Congress’ language is “plain and unambiguous,”
It is absolutely clear under the district court‘s unassailable findings that, in the course of the conspiracy Robinson delivered the drugs to Bungar, and that in furtherance of the conspiracy Bungar delivered the drugs to Allison. It was reasonably foreseeable to Robinson that Bungar would deliver the drugs to someone else, and it is indisputable that Allison‘s death was, in the words of the district court, “caused by a heroin overdose as a result of the heroin delivered to her by Bungar during the operation of the conspiracy.” In the circumstances, it would be sophistry to say that Allison‘s death did not result from the use of the heroin delivered pursuant to the conspiracy.
Robinson relies on Chief Judge Becker‘s concurring and dissenting opinion in United States v. Neadle, 72 F.3d 1104 (3d Cir. 1995), amended, 79 F.3d 14 (3d Cir. 1995), to argue that the statutory language is ambiguous. In interpreting the sentencing guidelines, Judge Becker stated that “the plain meaning of `resulted from’ connotes causation” and that “[t]he notion of causation runs throughout the law -- including the criminal law -- and it is generally understood to encompass two concepts. A defendant‘s conduct generally must be both the `cause in fact’ and the `proximate cause’ of some harm before liability is imposed.” Id. at 1115, 1119. In this case, however, unlike in Neadle, we are not dealing with the application of intricate provisions of the sentencing guidelines to calculate a financial loss. Rather, we are applying a statute dealing with a discrete problem, the distribution of controlled substances, products which Congress recognized will in some cases cause death or serious bodily injury. In short, Congress recognized that the risk is inherent in the product and thus it provided that persons who distribute it do so at their peril. It is obvious Congress intended in such a case that the 20-year mandatory minimum would apply if death or serious bodily injury resulted from the use of the substance without regard for common law proximate cause concepts.5
In reaching our result, we point out that the sentencing guidelines have limited relevancy here. While it is true that the court established a guidelines range and imposed a sentence within that range, in fact the court fixed the sentence without regard for that range as it imposed the statutory mandatory minimum sentence.
We also observe that
We recognize that in some cases it is possible that the death or serious bodily injury which “results from the use of a [controlled] substance” may be so remote a consequence from the criminal conduct of the defendant with respect to the substance that a court might conclude that it would not be consistent with congressional intent to apply the
In this regard, we reiterate that the district court‘s findings in this case came close to satisfying a proximate cause standard. Indeed, if they did not, it was only because the court did not make a finding that it was foreseeable that Allison or another consumer of the heroin might suffer death or serious bodily injury from it. Yet, it cannot have been the intent of Congress to require such a finding as a condition of a mandatory minimum sentence being applicable under
IV. CONCLUSION
For the foregoing reasons, the judgment of conviction and sentence will be affirmed.
A True Copy:
Teste:
Clerk of the United States Court of Appeals for the Third Circuit