U.S. v. Robinson

Decision Date12 February 1999
Docket NumberNo. 98-3304,98-3304
Citation167 F.3d 824
PartiesUNITED STATES of America v. Melvin ROBINSON, a/k/a Sweets Melvin Robinson, Appellant.
CourtU.S. Court of Appeals — Third Circuit

Thomas Livingston (argued), Pittsburgh, PA, for Appellant.

Harry Litman, United States Attorney, Bonnie R. Schlueter (argued), Assistant United States Attorney, Pittsburgh, PA, for Appellees.

BEFORE: GREENBERG and SCIRICA, Circuit Judges, and CARMAN, * Chief Judge, Court of International Trade

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. § 846 contrary to 21 U.S.C. §§ 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. § 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'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 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 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 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 section 841(b)(1)(C) to require a showing that the defendant's distribution of the substance in a commonlaw 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, 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. § 846 and 21 U.S.C. § 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 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.

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...

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