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D ock e t 98-3304

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. e du/thir dc ir c uit_1999/39Filed 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 Tr ade

(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 Unite d 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 sent enced 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 t he use
of" the substance the defendant was convicted of distributing.

On appeal, Robinson does not challenge the jury'sfi nding of guilt. Thus, he does not argue that the evidence did not support a finding that he conspired to distribute h eroin. 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 Pennsylvani a was an improper venue because the jury may have convicted him for his participation in a conspiracy in Ohio witho ut finding that he or any co-conspirator committed an overt ac t in furtherance of the conspiracy in the Western Distri ct of Pennsylvania. He also argues that section 841(b)(1) (C) requires a 20-year mandatory minimum only if a cour t
finds that the distribution of the substance was in the common law sense the proximate cause of death or se rious

2bodily injury. Accordingly, even though Robinson

acknowledges that a user of the heroin he supplied died from its use, he challenges the sentence because th e district court did not make a finding that his cond uct 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 dischar ge 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 Ron ald Bungar, who in turn delivered it to Allison and her boyfriend, Michael Minchoff. Thus, the court found tha t the 20-year mandatory minimum sentence was required.

We conclude that Robinson waived his objection to v enue by failing to raise the issue before the jury reach ed a verdict and that in any event venue was proper. We further conclude that Congress did not intend the phrase "i f death or serious bodily harm results from the use of such substance" in section 841(b)(1)(C) to require a sho wing 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 th e death to require the imposition of the mandatory mi nimum sentence. In the circumstances, we will affirm.1

II. FACTUAL AND PROCEDURAL HISTORY

A. Factual History

On November 29, 1995, Melvin Robinson sold threeeighths of a gram of heroin to Ronald Bungar in Youngstown, Ohio. Robinson was a long-time heroin a ddict,

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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 ba sed on 28 U.S.C. S 3231. Although Robinson also challenges the distr ict court's finding of "relevant conduct," and argues that a failure to re ad a proximate cause requirement into the text of section 841(b)(1)(C) w ould violate various constitutional provisions, we only will discuss his venue and proximate cause arguments since we find that these other cont entions clearly lack
merit.

3who over the years had cultivated a relationship wi th a

group of addicts from Greenville, Pennsylvania, inc luding Bungar and Michael Minchoff. Often one addict would make the 45-minute trip from Greenville to Youngsto wn for
a small amount of heroin to share with or sell to a nother
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 (on eeighth ounce) packets of heroin for Minchoff and hi s girlfriend, Bettina Allison. Once his guests arrive d, Robinson left the house to purchase a small amount of heroin for Bungar that Bungar then shared with Tofa ni 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 Bu ngar had bought from Robinson. Meanwhile, Minchoff injected a "speed-ball"2 from Robinson's heroin and some cocai ne 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 Alliso n 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 h eroin overdose sometime later that day or within the next few days.

B. Procedural history

On April 16, 1997, a grand jury in the Western Dist rict of Pennsylvania indicted Robinson for conspiring to
distribute heroin in violation of 21 U.S.C. S 846 a nd 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 repre sent him. A jury trial began on July 21, 1997, and at th e close of the government's case, Robinson unsuccessfully o rally

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

4moved for judgment of acquittal in a motion which d id not

challenge venue. On July 24, 1997, the jury returne d a verdict of guilty. On July 29, 1997, Robinson moved for a judgment of acquittal on the grounds, insofar as ge rmane here, that the court lacked jurisdiction over the c ase because of the alleged venue defect. The district c ourt denied the motion on July 31, 1997.

The court held sentencing hearings on April 16, 199 8, and May 7, 1998. It concluded that Robinson distrib uted heroin that resulted in Allison's, but not Minchoff 's, death. Thus, section 841(b)(1)(C) required a mandatory min imum 20-year sentence which the court accordingly impose d by
reason of Allison's death. While the court determin ed that the applicable sentencing range was 235-293 months under the Federal Sentencing Guidelines, in view of its i mposition 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 l ength:

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 int ent to distribute less than 100 grams of a mixture and substance containing a detectable amount of heroin.

Two: Defendant on multiple occasions prior t o November 29, 1995, had delivered drugs to Bu ngar, which drugs were delivered to others in Defe ndant's

presence.

Three: During the operation of the conspirac y, Defendant obtained heroin from an unknown so urce and co-conspirator in Ohio which Defendant d elivered
to Bungar.

Four: The heroin obtained by Bungar from Def endant 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.

5Six: During the operation of the conspiracy, Bungar

and Tofani, with the Defendant's knowledge, left the
Defendant's residence with some of the heroi n that Bungar had obtained from Defendant. And Bung ar delivered part of that heroin to Bettina All ison and Michael Minchoff at Allison's apartment in G reenville, 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 cocain e while in the presence of Bungar and Tofani.

Nine: During the aforementioned 10- to 15-mi nute period, Bungar and Tofani observed Allison p reparing some of the heroin in question for injection

.

Ten: Based upon their previous drug dealings , it was reasonably foreseeable to Defendant that Bun gar would deliver these drugs to others.

Eleven: The delivery of the heroin by Bungar to
Minchoff and Allison was in furtherance of t he conspiracy of which Defendant was a member, within the scope of the Defendant's agreement and r easonably
foreseeable in connection with the criminal activity the Defendant agreed to undertake.

Twelve: Allison was never seen alive again a fter Bungar and Tofani left her apartment in the early morning hours of November 30, 1995.

Thirteen: Various persons spoke with Minchof f over the telephone on November 30, 1995.

Fourteen: Michael Minchoff was seen alive throughout the day and early evening of Nove mber 30, 1995, in Greenville, Pennsylvania.

Fifteen: On December 2nd, 1995, officers wit h the Greenville-West Salem police department, res ponding to reports that Allison had missed two consecut ive workdays without reporting, found the bodies of Allison and Minchoff in Allison's apartment.

6Sixteen: The approximate time of the death o f Allison

was between 1 a.m. and 5:15 a.m. on November 30th, 1995; and the approximate time of death of M inchoff was between 9 p.m. on November 30th, 1995, a nd 9:45 a.m. on December 2nd, 1995.

Seventeen: The December 2nd, 1995, autopsy performed on the body of Allison confirmed t hat she
died from a heroin overdose and that she als o had cocaine, codeine, ethanol, and cannobinoids present in

her blood.

Eighteen: An autopsy performed on the body o f Minchoff on December 2nd, 1995, confirmed th at 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 de livered to her by Bungar during the operation of the co nspiracy.

Twenty: The death of Minchoff was caused by a heroin overdose resulting in whole or in par t 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 Be ttina
Allison resulted from the heroin which Defen dant 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 evid ence that Minchoff 's death resulted in whole or in pa rt from the
heroin which Defendant delivered to Ronald B ungar.

Accordingly, the Court finds that applicatio n of the
death enhancement set forth in Section 2D1.1 (a)(2) of the United States sentencing guidelines impo sing 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 Uni ted States Code, Section 841(b)(1)(C).

7Robinson filed a motion to correct the sentence on May

8, 1998, that the court denied on May 11, 1998. Thi s appeal followed.

III. DISCUSSION

A. Venue

We address Robinson's venue argument first.3 On thi s point we are exercising plenary review, as we are d eciding the point through the application of legal principl es. Article III, Section 2, Clause 3 of the Constitution, provi des that "[t]he Trial of all Crimes . . . shall be held in t he State
where the said Crimes shall have been committed." T he Sixth Amendment repeats this requirement: "In all c riminal prosecutions, the accused shall enjoy the right to .. . trial, by an impartial jury of the State and district wher ein the crime shall have been committed. . . ." Following t hese requirements, the Federal Rules of Criminal Procedu re mandate that "the prosecution shall be had in a dis trict 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 commit ted in more than one district, may be inquired of and pros ecuted in any district in which such offense was begun, co ntinued, 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 contentio n that venue was mislaid. See United States v. Polin, 323 F.2d 549, 556-57 (3d Cir. 1963); United States v. Gallag her, 183 F.2d 342, 346-47 (3d Cir. 1950). The government arg ues that Robinson waived any objection to venue by not raising it before the completion of the government's case i n chief. However, we have held that a defendant's failure to object before the government rests only constitutes a waiv er if the
defect in venue is clear on the face of the indictm ent. See United States v. Turley, 891 F.2d 57, 61 (3d Cir. 1 989).

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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).

8Where, as here, the offense described in the indict ment is

a conspiracy that allegedly was completed in the di strict 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 res ts its case. Therefore, we have held that "where there is a proper allegation of venue in the indictment, but the gove rnment fails to prove that allegation at trial, a challeng e to venue in a motion for acquittal is timely." United States v. Sandini, 803 F.2d 123, 127 (3d Cir. 1986). Thus, Robinson co uld have timely objected to venue at the close of the government's case, and was not required to object b efore the close of the government's case. Id.

Robinson contends that under Sandini he sufficientl y 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 t he First
and Fifth Circuits that a defendant must raise the issue of improper venue before the jury returns a verdict. S ee United States v. Parrish, 736 F.2d 152, 158 (5th Ci r. 1984) (per curiam) ("Thus, the courts have consistently r uled 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 thefirs t time after the jury reached a verdict, Robinson waived a ny objection to venue.

However, even if we were to find that Robinson time ly challenged venue, we would reject his argument. The United States can bring a prosecution in any distri ct where a conspiracy was begun, continued, or completed. Se e 18 U.S.C. S 3237(a). It is undisputed that Bungar deli vered the heroin he acquired from Robinson to Minchoff and Al lison in the Western District of Pennsylvania.

To establish a conspiracy, the evidence must show t hat the alleged conspirators shared a unity of purpose, an intent to achieve a common goal, and had an agreeme nt to work together to achieve that goal. See United Stat es v. Powell, 113 F.3d 464, 467 (3d Cir.), cert. denied, 118 S.Ct. 454 (1997). Here, the evidence established that Rob inson and Bungar had a relationship based upon the use an d distribution of heroin. Bungar estimated at trial t hat

9Robinson had sold him heroin approximately 80 or 90

times during this relationship. After purchasing he roin from Robinson, Bungar sometimes finished it at Robinson' s house but at other times he left with heroin to sha re with or sell to others in Greenville, Pennsylvania.

The events of November 29, 1995, were consistent wi th Bungar's and Robinson's earlier dealings. Bungarfir st
shared a small amount of heroin with Robinson and T ofani. He then purchased three more packets of heroin. Rob inson recognized that the heroin was strong, and that Bun gar'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 o f distributing heroin to others in Greenville, so tha t they could continue to supply their own needs.

Finally, it is clear that the court and both partie s focused the jury on the distinction between a conspiracy an d a buyer/seller agreement. Both the government and Rob inson spent considerable time explaining the difference b etween the two types of agreements, and the district court correctly charged the jury on the matter. In fact, the jury a sked for
and received clarification of the court's instructi on regarding a buyer/seller agreement. In view of all the circumstances, it is clear that the government esta blished
that there were overt acts in furtherance of the co nspiracy in the Western District of Pennsylvania so venue pr operly
was laid there.

B. The "results from" language of sectio n 841(b)(1 )(C)

Our review of a district court's rulings on sentenc ing 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 t he use of heroin that Robinson delivered to Bungar, Allison w ould 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 gover nment needs to show that his conduct was the proximate ca use of

10Allison's death. Robinson asks us to remand to the district

court for resentencing using this standard.

We have two preliminary observations on the sentenc ing issue. First, it is not clear to us why the distric t court's findings with respect to Minchoff led it to conclud e that the mandatory minimum sentence was not applicable by reason of his death. Second, even though the govern ment does not contend that the district court made a pro ximate cause finding with respect to Allison's death, it s eems to us that its findings certainly came quite close to sat isfying that standard. Nevertheless, we take the case on the bas is the parties present it, that only Allison's death is in volved and proximate cause was not established.

Although we have not decided the sentencing issue, the Court of Appeals for the Fourth Circuit in United S tates v. Patterson, 38 F.3d 139 (4th Cir. 1994), held that s ection 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 o f a drug distributed by a defendant was a reasonably foresee able event. Id. The court explained that the"statute put s drug
dealers and users on clear notice that their senten ces will be enhanced if people die from using the drugs they distribute. . . . Where serious bodily injury or de ath results from the distribution of certain drugs, Congress ha s elected to enhance a defendant's sentence regardless of whe ther

the defendant knew or should have known that death would result." Patterson, 38 F.3d at 145. The Patte rson court then explained that it would "not second-gues s this unequivocal choice." Id.

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4. The court declined to decide whether section 841 (b)(1)(C) includes an intervening or superseding cause exception to the a pplication of its enhancement since it upheld the district court'sfin ding that there was no intervening or superseding cause of death. Id. a t 146. There was no intervening or superseding cause here either.

11We will not either. After all, our role is to "give effect to

Congress's intent." Idahoan Fresh v. Advantage Prod uce, Inc., 157 F.3d 197, 202 (3d Cir. 1998). Where, as h ere, Congress' language is "plain and unambiguous," we s imply 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 mi nimum 20-year sentence was required.

It is absolutely clear under the district court's unassailable findings that, in the course of the co nspiracy 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 r esult of the heroin delivered to her by Bungar during the op eration of the conspiracy." In the circumstances, it would be sophistry to say that Allison's death did not resul t from the use of the heroin delivered pursuant to the conspir acy.

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 interpretin g 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 u nderstood 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 intricat e provisions of the sentencing guidelines to calculat e a financial loss. Rather, we are applying a statute d ealing with a discrete problem, the distribution of contro lled substances, products which Congress recognized will in

12some cases cause death or serious bodily injury. In short,

Congress recognized that the risk is inherent in th e product and thus it provided that persons who distribute it do so at their peril. It is obvious Congress intended in suc h a case that the 20-year mandatory minimum would apply if d eath or serious bodily injury resulted from the use of t he substance without regard for common law proximate c ause concepts.5

In reaching our result, we point out that the sente ncing guidelines have limited relevancy here. While it is true that the court established a guidelines range and impose d a sentence within that range, in fact the court fixed the sentence without regard for that range as it impose d 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 r esult. Under that section, relevant conduct with respect t o 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 a s relevant conduct in a "jointly undertaken criminal activity

. . . whether or not charged as a conspiracy[ ] all reaso nably
foreseeable acts and omissions of others in further ance of the jointly undertaken criminal activity." Here, of course, Bungar's distribution of the heroin to a third part y was not merely reasonably foreseeable by Robinson. After al l, the
evidence we describe above shows that Robinson inte nded
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 b e 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 defend ant with respect to the substance that a court might co nclude

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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. 199 2). There is no question but that Robinson was the source of the he roin involved here.

13that it would not be consistent with congressional intent to

apply the mandatory 20-year minimum sentence. Where ver, 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. Surel y, here the mandatory minimum sentence is applicable. Accordingly, this case does not require us to consi der whether there is or should be a principled way to l imit the application of section 841(b)(1)(C) when cause in f act is
established.

In this regard, we reiterate that the district cour t's findings in this case came close to satisfying a pr oximate cause standard. Indeed, if they did not, it was onl y because the court did not make a finding that it was forese eable that Allison or another consumer of the heroin migh t suffer death or serious bodily injury from it. Yet, it can not have been the intent of Congress to require such a findi ng 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 u se of controlled substances. Plainly, if we read a partic ularized foreseeability requirement into that section, we wo uld 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 s hould narrow its application.

IV. CONCLUSION

For the foregoing reasons, the judgment of convicti on and
sentence will be affirmed.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

14