663 F.3d 634 (3rd Cir. 2011), 06-1370, United States v. Bansal

Docket Nº:Frederick Mullinix, Appellant in 06-2536, 06-3043, 07-1526, 07-4618, 09-1827.
Citation:663 F.3d 634
Opinion Judge:ALDISERT, Circuit Judge.
Party Name:UNITED STATES of America, v. Akhil BANSAL, Appellant in Nos. 06-1370, 06-2535, 07-1525, and
Attorney:Akhil Bansal, Schuylkill FCI, Minersville, PA, pro se. Frederick Mullinix, Federal Prison Camp, Pensacola, FL, pro se. Raymond S. Sussman (on brief), Law Office of Raymond S. Sussman, Brooklyn, NY, for Appellant Frederick Mullinix. Zane David Memeger, Robert A. Zauzmer, Frank R. Costello, Office ...
Judge Panel:Before: SLOVITER, GREENAWAY, JR. and ALDISERT, Circuit Judges.
Case Date:December 14, 2011
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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663 F.3d 634 (3rd Cir. 2011)

UNITED STATES of America,

v.

Akhil BANSAL, Appellant in Nos. 06-1370, 06-2535, 07-1525,

and

Frederick Mullinix, Appellant in Nos. 06-2536, 06-3043, 07-1526, 07-4618, 09-1827.

Nos. 06-1370, 06-2535, 06-2536, 06-3043, 07-1525, 07-1526, 07-4618, 09-1827.

United States Court of Appeals, Third Circuit.

December 14, 2011

Submitted under Third Circuit LAR 34.1(a) Oct. 27, 2011.

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Akhil Bansal, Schuylkill FCI, Minersville, PA, pro se.

Frederick Mullinix, Federal Prison Camp, Pensacola, FL, pro se.

Raymond S. Sussman (on brief), Law Office of Raymond S. Sussman, Brooklyn, NY, for Appellant Frederick Mullinix.

Zane David Memeger, Robert A. Zauzmer, Frank R. Costello, Office of the United States Attorney, Philadelphia, PA, for Appellee.

Before: SLOVITER, GREENAWAY, JR. and ALDISERT, Circuit Judges.

OPINION

ALDISERT, Circuit Judge.

Akhil Bansal and Frederick Mullinix appeal from their jury convictions in the United States District Court for the Eastern District of Pennsylvania on a 42-count indictment alleging crimes arising from their multi-national, internet-based, controlled-substance-distribution scheme. They have, in our estimation, challenged every decision of the District Court, at almost every moment of the litigation before, during, and after their convictions. Yet in the more than 1,100 pages of briefing submitted to us by both defendants and the government, we have identified not a single instance of reversible error. That the prior rulings and findings in this case have emerged from such an onslaught wholly intact represents no small achievement by the District Court, whose decisions we will affirm in all respects.1

I.

This case is about two defendants' convictions for illegal drug sales via websites purporting to be online pharmacies. From 2003 to 2005, Appellants Bansal and Mullinix imported controlled and noncontrolled substances from India, which they then advertised on the internet and distributed to customers in the United States via the mail without prescriptions. In 2006 the

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Appellants were charged under a 42-count indictment, tried, and convicted by a jury on all counts. This is their direct appeal.

Bansal, who lived in Philadelphia, supervised the domestic side of the multi-national controlled substance distribution conspiracy at issue in this case. He received bulk shipments of controlled substances from India, which he then stored, repackaged, and shipped directly to customers who ordered and paid for them online. He also oversaw the operation's finances and payment system, which he managed by opening on- and off-shore bank accounts, accepting payments from and delivering controlled substances to participating website operators, and transferring money between coconspirators and various banks.

Consumers were invited to purchase controlled substances through several of Mullinix's internet websites, the most important of which was www. mymeds. com. Visitors to his websites simply chose the type, strength, and quantity of the drug they desired, paid with a credit card or online service such as PayPal, and awaited postal delivery to any address they provided. Between 2003 and 2005, approximately $1.3 million in proceeds from controlled substance sales flowed between Mullinix and Bansal.

Bansal, Mullinix, and many other coconspirators were indicted in April of 2005. Both of the Appellants here were arrested quickly— Mullinix apparently without incident, and Bansal as he attempted to flee the country the morning after his bank accounts were frozen. Bansal waived his Miranda rights, confessed to running an internet drug selling business, and admitted that he knew the operation was illegal. At approximately the same time as Bansal's arrest, federal agents executed search warrants upon at least two homes and a UPS store in New York, as well as two internet service providers in Mountain View, California. These searches produced approximately 450 gallons of contraband medication, as well as computer files and other records detailing the inner workings of the distribution operation.

Both Appellants hired and fired various attorneys throughout the course of their proceedings in the District Court. Ultimately, their cases proceeded to a jury trial and each was convicted on all counts alleged in their joint indictment. The convictions under that indictment, portions of which charged Bansal but not Mullinix, were:

Count 1: Conspiracy to distribute controlled substances, in violation of 21 U.S.C. § 846.

Count 2: Conspiracy to import controlled substances, in violation of 21 U.S.C. § 963.

Count 3: Operation of a continuing criminal enterprise, in violation of 21 U.S.C. § 848 (Bansal only).

Count 4: Conspiracy to distribute misbranded substances, in violation of 21 U.S.C. §§ 331(a) and 333(a)(2).

Count 5: Conspiracy to distribute controlled substances, in violation of 18 U.S.C. § 371.

Count 6: International travel and money transfers in furtherance of unlawful activity, in violation of 18 U.S.C. §§ 1952(a)(3) and 1957.

Count 7-10: Money laundering, in violation of 18 U.S.C. § 1956(a)(2)(A) (Bansal only).

Count 11-13: Monetary transactions in property derived from criminal activity, in violation of 18 U.S.C. § 1957.

Count 14-19: Money laundering in violation of 18 U.S.C. § 1956(a)(1)(A)(i).

Counts 30-39: Monetary transactions in property derived from criminal activity, in violation of 18 U.S.C. § 1957 (Bansal only).

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Counts 40-41: Money laundering in violation of 18 U.S.C. § 1956(a)(1)(A)(i) (Bansal only).

Counts 42-44: Monetary transactions in property derived from criminal activity, in violation of 18 U.S.C. § 1957 (Bansal only).

Forfeiture: Of all proceeds and property derived from the conspiracy to distribute controlled substances, pursuant to 21 U.S.C. §§ 853 and 970.

Upon their convictions, both Appellants filed this direct appeal, Mullinix through counsel and Bansal pro se. After briefing, Mullinix filed a motion seeking to proceed pro se as well, which we granted.

II.

The District Court had jurisdiction because the defendants were charged with offenses against the United States. See 18 U.S.C. § 3231. We have jurisdiction over its final judgments pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). The relevant standard of review is set forth in each subsection below.

III.

For simplicity's sake, we rearrange and analyze Bansal's and Mullinix's most complex contentions in the following order. First, both Appellants contend that their money laundering convictions impermissibly merge with their underlying predicate felonies under United States v. Santos, 553 U.S. 507, 128 S.Ct. 2020, 170 L.Ed.2d 912 (2008). Second, Bansal raises a host of issues related to his Continuing Criminal Enterprise (" CCE" ) conviction, concerning the indictment, the sufficiency of the evidence, and the jury instructions on that charge. Third, Bansal challenges the District Court's decision to suppress evidence obtained from untimely sealed surveillance records, on the ground that the government did not provide a satisfactory explanation for its seven- and ten-day delays in sealing the records. See United States v. Carson, 969 F.2d 1480 (3d Cir.1992). Fourth, both Appellants allege a violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), during sentencing. For the reasons set forth infra Part IV and V, we reject each of these contentions.

The remaining, more-frivolous contentions fall into two groups: shared arguments and those made by Bansal alone. Among the shared arguments, Appellants first challenge their conspiracy convictions under Counts One and Two of their indictment on the ground that the underlying conduct the government alleged, distribution of controlled substances via the internet, was not illegal at the time they were charged. Next, they challenge their money laundering convictions on the related ground that they obtained the money laundered by lawful means. Third, they contend their convictions under Count One were misdemeanors and not felonies. For these reasons set forth infra Part VI, we will affirm the District Court with respect to each of the above issues.

Finally, Bansal alone raises a number of issues. First, he makes several contentions pertaining to the sufficiency of his indictment, the grand jury procedures in his case, and the voir dire procedures in empanelling his jury. Second, Bansal challenges the scope and sufficiency of the warrants by which evidence against him was obtained. Third, he challenges the sufficiency of the evidence supporting the jury's verdict of guilty with respect to his controlled substance distribution and importation charges. Fourth, he contends various items of evidence were admitted against him in violation of the Sixth Amendment's Confrontation Clause and the Federal Rules of Evidence. Fifth, he

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contends that various jury instructions misstated the law or directed a verdict for the prosecution. Finally, he alleges that prosecutorial misconduct and Brady violations mandate a new trial. We conclude, for the reasons infra Part VII, that all of these contentions are without merit. We therefore will affirm the District Court.

IV.

We must determine: (1) whether Appellants' money laundering convictions violated United States v. Santos, 553 U.S. 507, 128 S.Ct. 2020, 170 L.Ed.2d 912 (2008); (2) with what specificity must the government list predicate offenses in...

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