                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-12-1999

USA v. Robinson
Precedential or Non-Precedential:

Docket 98-3304




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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)

       Thomas Livingston (argued)
       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

OPINION OF THE COURT

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 21 U.S.C.
S 846 contrary to 21 U.S.C. SS 841(a)(1) and 841(b)(1)(C).
After conducting a hearing, the district court sentenced
Robinson to the mandatory 20-year minimum term
required by 21 U.S.C. S 841(b)(1)(C) ("section 841(b)(1)(C)")
when "death or serious bodily injury results from the use
of" the substance the defendant was convicted of
distributing.

On appeal, Robinson does not challenge the jury'sfinding
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 section 841(b)(1)(C)
requires a 20-year mandatory minimum only if a court
finds that the distribution of the substance was in the
common law sense the proximate cause of death or serious

                                  2
bodily injury. Accordingly, even though Robinson
acknowledges that a user of the heroin he supplied died
from its use, he challenges the sentence because the
district court did not make a finding that his conduct was
a proximate cause of the user's death.

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 boy-
friend, 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 section 841(b)(1)(C) to require a showing that
the defendant's distribution of the substance in a common-
law sense proximately caused a death. Moreover, we hold
that the court's well-supported findings show that there
was a sufficient nexus between the substance and the
death to require the imposition of the mandatory minimum
sentence. In the circumstances, we will affirm.1

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,
_________________________________________________________________

1. We have jurisdiction under 28 U.S.C. S 1291 and 18 U.S.C. S 3742,
and the district court had original jurisdiction based on 28 U.S.C.
S 3231. Although Robinson also challenges the district court's finding of
"relevant conduct," and argues that a failure to read a proximate cause
requirement into the text of section 841(b)(1)(C) would violate various
constitutional provisions, we only will discuss his venue and proximate
cause arguments since we find that these other contentions clearly lack
merit.

                                3
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.

On November 29, Bungar made the trip to Robinson's
Youngstown home with his girlfriend, Dolores Tofani.
Bungar earlier had agreed to purchase three $20 (one-
eighth ounce) packets of heroin for Minchoff and his
girlfriend, Bettina Allison. Once his guests arrived,
Robinson left the house to purchase a small amount of
heroin for Bungar that Bungar then shared with Tofani and
Robinson. Later, Bungar purchased three packets of heroin
for Minchoff from Robinson. Bungar delivered these three
packets to Minchoff and Allison when he returned to
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 21 U.S.C. S 846 and 21
U.S.C. S 841. Robinson was arrested in Ohio and was
transported to the Western District of Pennsylvania where
he was arraigned and counsel was appointed to represent
him. A jury trial began on July 21, 1997, and at the close
of the government's case, Robinson unsuccessfully orally
_________________________________________________________________

2. A "speed-ball" is the street term for the often dangerous mixture of
equal parts cocaine and heroin.

                               4
moved for judgment of acquittal in a motion which did not
challenge venue. On July 24, 1997, the jury returned a
verdict of guilty. On July 29, 1997, Robinson moved for a
judgment of acquittal on the grounds, insofar as germane
here, that the court lacked jurisdiction over the case
because of the alleged venue defect. The district court
denied the motion on July 31, 1997.

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, section 841(b)(1)(C) required a mandatory minimum
20-year sentence which the court accordingly imposed by
reason of Allison's death. While the court determined that
the applicable sentencing range was 235-293 months under
the Federal Sentencing Guidelines, in view of its imposition
of the 20-year sentence the range was not material.

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.

                               5
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.

                        6
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).

                        7
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 plenary review, as we are deciding
the point through the application of legal principles. Article
III, Section 2, Clause 3 of the Constitution, provides that
"[t]he Trial of all Crimes . . . shall be held in the State
where the said Crimes shall have been committed." The
Sixth Amendment repeats this requirement: "In all criminal
prosecutions, the accused shall enjoy the right to .. . trial,
by an impartial jury of the State and district wherein the
crime shall have been committed. . . ." Following these
requirements, the Federal Rules of Criminal Procedure
mandate that "the prosecution shall be had in a district in
which the offense was committed." Fed. R. Crim. P. 18.
Finally, Congress has provided that "any offense . . . begun
in one district and completed in another, or committed in
more than one district, may be inquired of and prosecuted
in any district in which such offense was begun, continued,
or completed." 18 U.S.C. S 3237.

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).
_________________________________________________________________

3. While Robinson speaks in terms of a challenge to jurisdiction, clearly
venue and not jurisdictional questions are involved here. See e.g., United
States v. Polin, 323 F.2d 549, 556 (3d Cir. 1963).

                               8
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 thefirst 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 18
U.S.C. S 3237(a). It is undisputed that Bungar delivered the
heroin he acquired from Robinson to Minchoff and Allison
in the Western District of Pennsylvania.

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

                               9
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 dealings. Bungarfirst
shared a small amount of heroin with Robinson and Tofani.
He then purchased three more packets of heroin. Robinson
recognized that the heroin was strong, and that Bungar's
purchase of three more packets was consistent with an
intent to distribute it, as Bungar had often done. Together,
Robinson and Bungar were connected in the purpose of
distributing heroin to others in Greenville, so that they
could continue to supply their own needs.

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 sectio n 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 section
841(b)(1)(C) and what he contends are the relevant
sentencing guideline provisions to apply, the government
needs to show that his conduct was the proximate cause of

                               10
Allison's death. Robinson asks us to remand to the district
court for resentencing using this standard.

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 section
841(b)(1)(C) imposes no "reasonable foreseeability of death"
requirement. 38 F.3d at 145.4 In the circumstances, there
can be no question but that if we adopt Robinson's position
we must reject Patterson.

Patterson held that the "plain language" of section
841(b)(1)(C) neither requires nor indicates that a district
court must find that death resulting from the use of a drug
distributed by a defendant was a reasonably foreseeable
event. Id. The court explained that the"statute puts drug
dealers and users on clear notice that their sentences will
be enhanced if people die from using the drugs they
distribute. . . . Where serious bodily injury or death results
from the distribution of certain drugs, Congress has elected
to enhance a defendant's sentence regardless of whether
the defendant knew or should have known that death
would result." Patterson, 38 F.3d at 145. The Patterson
court then explained that it would "not second-guess this
unequivocal choice." Id.
_________________________________________________________________

4. The court declined to decide whether section 841(b)(1)(C) includes an
intervening or superseding cause exception to the application of its
enhancement since it upheld the district court'sfinding that there was
no intervening or superseding cause of death. Id. at 146. There was no
intervening or superseding cause here either.

                               11
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," we simply
apply the language of the statute as written. Here, the
conspiracy was to distribute heroin. Thus, Robinson was
subject "to the same penalties as those prescribed for the
offense, the commission of which was the object of the . . .
conspiracy." 21 U.S.C. S 846. Under section 841(b)(1)(C), in
a distribution of heroin case "if death or serious bodily
injury results from the use of such substance" a minimum
20-year sentence was required.

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, 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

                               12
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 U.S.S.G. S 1B1.3(a)(3), which
Robinson cites, is completely consistent with our result.
Under that section, relevant conduct with respect to factors
determining sentencing range include all "harm that
resulted from the acts and omissions specified" in U.S.S.G.
S 1B1.3(a)(1)(B). Section 1B1.3(a)(1)(B) includes as relevant
conduct in a "jointly undertaken criminal activity . . .
whether or not charged as a conspiracy[ ] all reasonably
foreseeable acts and omissions of others in furtherance of
the jointly undertaken criminal activity." Here, of course,
Bungar's distribution of the heroin to a third party was not
merely reasonably foreseeable by Robinson. After all, the
evidence we describe above shows that Robinson intended
that it be distributed for its distribution was the very
purpose of the conspiracy. To the extent, therefore, that
section 1B1.3(a)(3) is implicated here, there can be no
doubt that it is satisfied.

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
_________________________________________________________________

5. We are not concerned here with cases calculating the total quantity of
drugs in a conspiracy attributable to a particular defendant. See e.g.,
United States v. Collado, 975 F.2d 985 (3d Cir. 1992). There is no
question but that Robinson was the source of the heroin involved here.

                               13
that it would not be consistent with congressional intent to
apply the mandatory 20-year minimum sentence. Wherever,
if anywhere, that line might be is of no concern to us now.
In this case, Robinson conspired to distribute the heroin
and a person to whom it almost immediately was
distributed consumed it and died as a result. Surely, here
the mandatory minimum sentence is applicable.
Accordingly, this case does not require us to consider
whether there is or should be a principled way to limit the
application of section 841(b)(1)(C) when cause in fact is
established.

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 sections 841(b)(1)(C), for surely what
concerned Congress was the inherent risk from the use of
controlled substances. Plainly, if we read a particularized
foreseeability requirement into that section, we would limit
the applicability of the section significantly and frustrate
Congress' intent. If section 841(b)(1)(C) is not to be applied
as presently written, Congress and not this court should
narrow its application.

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

                               14
