United States v. Votrobek

• Decision Date: 13 February 2017
• Docket Number: No. 14–12790,14–12790
• Citation: 847 F.3d 1335
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Jason VOTROBEK, Roland Castellanos, Defendants–Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

847 F.3d 1335

UNITED STATES of America, Plaintiff–Appellee,

v.Jason VOTROBEK, Roland Castellanos, Defendants–Appellants.

No. 14–12790

United States Court of Appeals, Eleventh Circuit.

February 13, 2017

Laurel Boatright, Gary Scott Hulsey, Cassandra J. Schansman, Lawrence R. Sommerfeld, George Jeffrey Viscomi, Assistant U.S. Attorney, Sally Yates, U.S. Attorney's Office, Atlanta, GA, for Plaintiff–Appellee.

Lawrence Jason Zimmerman, The Law Office of Lawrence Zimmerman, Atlanta, GA, for Defendant–Appellant Roland Castellanos.

Walter Michael Welsh, The Welsh Law Firm, Palmetto, GA, for Defendant–Appellant Jason Votrobek (Federal Prisoner: 62966–019).

Before WILSON and JULIE CARNES, Circuit Judges, and ROYAL,^* District Judge.

ROYAL, District Judge:

A jury convicted Appellants Jason Votrobek and Roland Castellanos of conspiring to distribute drugs, in violation of 21 U.S.C. § 846 ; conspiring to launder money, in violation of 18 U.S.C. § 1956(h) ; and substantive charges of money laundering and maintaining a place for unlawful drug distribution. The district court sentenced both to 180 months in confinement, followed by three years of supervised release. Appellants challenge their convictions. After careful review, we AFFIRM .

BACKGROUND

Appellants' convictions center on their involvement in a "pill mill" business.¹ Appellants learned how to operate a pill mill clinic from Zachary Rose, who owned and operated three clinics in Jacksonville, Florida. Indeed, Appellants met each other while working on the staff at one of these clinics, Jacksonville Pain and Urgent Care (Jacksonville Pain). However, once law enforcement began to investigate Rose's Florida clinics in early 2010, Appellants left Jacksonville Pain and established their own clinic, Atlanta Medical Group (AMG) in Cartersville, Georgia. AMG soon hired Dr. James Chapman as its prescribing physician.

Appellants operated AMG in the fashion typical of pill mills. Generally, AMG patients would pay about $300 in cash for a cursory examination by Dr. Chapman, whose prescriptions for pain medications were processed by AMG's in-house pharmacy. To pass drug tests, patients frequently brought balloons containing urine and bribed AMG staff. Security guards searched patients for weapons. Moreover, Appellants charged more for prescriptions than AMG's books reflected and purchased luxury vehicles with the undocumented cash.

As is also typical of these operations, nearby tenants soon began to complain to AMG's landlord that unkempt patients arrived before business hours in cars with out-of-state license plates and loitered in the parking lot. Local pharmacies refused to fill AMG's prescriptions because the patients did not appear to be in any pain. In May 2010, after a traffic stop of four AMG patients carrying large amounts of prescription narcotics, the Drug Enforcement Administration (DEA) began investigating AMG.

Although Appellant Votrobek had left Florida to open AMG in Georgia, his involvement in Rose's Florida clinics caught up with him. On April 20, 2012, in the Middle District of Florida, a Grand Jury indicted Votrobek for conspiracy to distribute Oxycodone and Alprazolam not for a legitimate medical purpose and conspiracy to launder money. After a fifteen-day trial, however, a jury found Votrobek not guilty.

Votrobek's respite from conviction was fleeting. Less than two months after his acquittal in Florida, on June 25, 2013, a Grand Jury in the Northern District of Georgia returned a thirty-two count indictment against Appellants Votrobek and Castellanos, as well as Dr. Chapman, regarding their involvement in AMG. Pertinent to this appeal, the indictment charged Appellants with conspiracy to distribute Oxycodone, Hydrocodone with Acetominophen (Lorcet

), and Alprazolam (Xanax) for other than a legitimate medical purpose; conspiracy to launder money; and substantive counts of money laundering and maintaining a place for unlawful drug distribution.

After almost four weeks of trial, a jury convicted Appellants on all counts.² The district court sentenced each to a total of 180 months in prison, followed by three years of supervised release. Additionally, each was required to pay $200,000 in fines and forfeit to the United States a monetary judgment in the amount of $3,975,308.

On appeal, Votrobek and Castellanos each raise two issues. Votrobek argues the district court (1) committed plain error by not dismissing the Georgia conspiracy charges on Double Jeopardy grounds, and (2) assuming the conspiracy charges were barred by Double Jeopardy, committed plain error by not dismissing his substantive convictions based on prejudicial spillover. Castellanos argues the district court (1) erred by refusing to hold an evidentiary hearing concerning the affidavits supporting the four wiretaps, and (2) abused its discretion by refusing to instruct the jury on the entrapment-by-estoppel defense. For the reasons set forth below, we affirm both convictions.

DISCUSSION

I. Double Jeopardy

Votrobek first argues his conspiracy charges in the Northern District of Georgia arose from the same conspiracy for which he was acquitted in the Middle District of Florida and thus are barred by the Double Jeopardy Clause. We disagree.

Because Votrobek failed to raise this argument below, he forfeited his right to a Double Jeopardy defense, and we review for plain error. United States v. Lewis , 492 F.3d 1219, 1222 (11th Cir. 2007) (en banc). Under this standard, an appellant must establish "(1) error, (2) that is plain, and (3) that affects substantial rights." United States v. Rodriguez , 398 F.3d 1291, 1298 (11th Cir. 2005) (quoting United States v. Cotton , 535 U.S. 625, 631, 122 S.Ct. 1781, 1785, 152 L.Ed.2d 860 (2002) ). If the appellant meets all three conditions, "an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings." Id.

The Double Jeopardy Clause of the Fifth Amendment provides "[n]o person shall ... be subject for the same offen[s]e to be twice put in jeopardy of life or limb." U.S. Const. amend V. Specifically, the Double Jeopardy Clause protects against (1) "a second prosecution for the same offense after acquittal"; (2) "a second prosecution for the same offense after conviction"; and (3) "multiple punishments for the same offense." Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977) (internal quotation marks omitted). The Clause, however, does not "forbid a second prosecution involving a violation of exactly the same law." United States v. Maza , 983 F.2d 1004, 1011 (11th Cir. 1993). Accordingly, "[w]hether a defendant has committed the same offense twice is a factual question" requiring a "determination that the underlying facts that gave rise to the first prosecution are, or are not the sole basis for the second." Id.

Thus, to determine whether Votrobek's conviction violated Double Jeopardy, we must decide whether he committed two separate conspiracies in Florida and Georgia or only one. To do so, we consider five factors: "(1) time, (2) persons acting as co-conspirators, (3) the statutory offenses charged in the indictments, (4) the overt acts charged by the government or any other description of the offense charged which indicates the nature and scope of the activity which the government sought to punish in each case, and (5) places where the events alleged as part of the conspiracy took place." United States v. Marable , 578 F.2d 151, 154 (5th Cir. 1978).³ Using these factors, the government bears the burden of proving a separate conspiracy by a preponderance of the evidence. Maza , 983 F.2d at 1013. In this analysis, we are free to consider the record in addition to the indictments. Marable , 578 F.2d at 154 ; see also United States v. Benefield , 874 F.2d 1503, 1506 (11th Cir. 1989).

Applying the Marable factors to this case, we conclude the government has shown Votrobek committed two separate conspiracies, one in Florida and one in Georgia. First, the Florida and Georgia conspiracies did not overlap in time. A temporal gap between the end of one conspiracy and the beginning of another indicates separate conspiracies. See United States v. Sturman , 679 F.2d 840, 844 (11th Cir. 1982). Here, Votrobek ended his involvement in the Florida conspiracies in April 2010, one month before the Georgia conspiracies began.⁴

Second, Votrobek's different co-conspirators in Florida and Georgia indicate separate conspiracies. The only named participant the conspiracies had in common was Votrobek himself.⁵ As we have previously noted, the participation of a single common actor fails to establish the existence of a single conspiracy. See United States v. Nino , 967 F.2d 1508, 1511–12 (11th Cir. 1992) (citing Kotteakos v. United States , 328 U.S. 750, 754–55, 66 S.Ct. 1239, 1242–43, 90 L.Ed. 1557 (1946) ). Indeed, the absence of co-conspirators charged in both indictments indicates "two distinct conspiracies." Sturman , 679 F.2d at 843. Moreover, the linchpin of the Georgia conspiracy was Dr. James Chapman, whose participation allowed AMG to distribute controlled narcotics. Yet Dr. Chapman did not participate in the Florida conspiracy. The fact that certain patients patronized both the Florida and Georgia clinics is irrelevant because no patients were co-conspirators. We agree with the government that the evidence indicates Votrobek learned the pill mill business in Florida, then left to start AMG in Georgia with new co-conspirators.

Third, although the offenses charged in both indictments were almost identical, this factor is not controlling. We have previously explained "it is possible to have two different conspiracies to commit exactly the same kind of crime." Nino , 967 F.2d at 1512. Accordingly, we have described this factor as "clearly" the least important to the Marable analysis. See Sturman , 679 F.2d at 843. Moreover, although both...