IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-40150

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

HABIBOOLA NIAMATALI, 

 Defendant - Appellant

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 4:13-CR-176

Before DENNIS, CLEMENT, and GRAVES, Circuit Judges.

PER CURIAM:*

This is an appeal from a jury conviction and sentence for conspiring to 

distribute, and to possess with intent to distribute, controlled substances under 

21 U.S.C. §§ 841, 846. Because we conclude that venue was improper, we 

reverse, vacate the judgment and remand.

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

January 26, 2018

Lyle W. Cayce

Clerk

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FACTS AND PROCEDURAL HISTORY

Dr. Habiboola Niamatali, a native of Guyana, was a primary-care 

physician specializing in internal medicine who operated two medical clinics 

in Garland and Lancaster in the Northern District of Texas. While reviewing 

pharmacy records, Drug Enforcement Agency (DEA) investigators began 

noticing Niamatali’s name on numerous controlled-substance prescriptions 

and began an investigation.

DEA Diversion Investigator Susannah Herkert testified that, from 2008-

2011, hydrocodone, alprazolam, and promethazine with codeine (cough syrup) 

accounted for approximately 77 percent of the controlled-substance 

prescriptions written by Niamatali. Further, Herkert said that Niamatali 

ranked second in the number of prescriptions written for hydrocodone out of 

approximately 6,000 DEA registrants in the Dallas area. Herkert said that 

Niamatali’s patients were predominantly African American, often traveled 

from long distances, including other states, waited in long lines outside his 

clinics, and often paid cash.1 Authorities characterized Niamatali’s practice as 

a “pill mill,” a facility where prescriptions for controlled substances are 

typically written for cash and are not issued for legitimate medical reasons.

Two undercover police officers working with the DEA posed as patients 

and visited Niamatali’s clinics a total of seven times. Herkert briefed the 

officers on how to act and what to say about faked injuries or illnesses to obtain 

the targeted prescriptions. She also provided one of the officers with a fake 

document from another doctor regarding a prior knee injury and a driver’s 

license with a fake name, and instructed her to portray an exotic dancer with

an ankle injury. The officers were also wired with recording devices, which did 

 

1However, Herkert also testified that the average travel distance for patients was 22

miles and that most of the patients were coming from local areas surrounding the clinics. 

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not function properly at least two times and had technical difficulties some 

other times. Herkert testified that, with the exception of the first visit when 

one of the officers was turned away for not having documentation from another 

doctor as a new patient, the visits resulted in prescriptions for either 

hydrocodone, alprazolam, or promethazine with codeine and were paid for in 

cash. She said these prescriptions were obtained outside the scope of 

professional practice and not for medical purposes.

Search warrants were then served on the clinics, the pharmacy next to 

the Lancaster clinic and Niamatali’s residence on June 14, 2011, or June 15, 

2011. Authorities seized patient files containing either hydrocodone, 

alprazolam or promethazine with codeine prescriptions from February of 2010 

forward. Herkert said authorities were searching for patient files, 

documentation related to the drugs in question or cash at Niamatali’s home. 

She said authorities believed Niamatali had a large sum of currency at the 

house because there had been a traffic stop during the investigation in which 

Niamatali allegedly pulled an envelope of cash out of his lab coat. 

Approximately $214,000 was found at Niamatali’s house. Some of the cash 

was bound with rubber bands and some was in envelopes marked with the 

name of the clinic, the amount of money, the date, the day of the week, and 

how many patients were seen in the morning or afternoon. Herkert also 

interviewed Niamatali at his residence the day of the search. 

Niamatali acknowledged that his practices were located in high-crime 

areas, but explained that the hospitals had closed and that it was an 

underserved area. He had previously worked at the hospital in Garland and 

had an office attached to the hospital where he maintained a private practice. 

He later began working at the hospital in Lancaster and also had an office 

there. He also said that he saw many uninsured blue collar workers who often 

suffered injuries or illness, could not afford to miss work, and paid in cash or 

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received Medicare or Medicaid.2 He admitted to recently cutting corners in an 

effort to get his staff out at a reasonable hour. 

Eventually, Niamatali surrendered his DEA controlled substance 

registration pending review, but was still able to practice medicine. The Texas 

Medical Board had investigated Niamatali, but had not taken any action to 

suspend or revoke his license at the time of trial. 

Niamatali was subsequently indicted and convicted of conspiracy to 

possess with the intent to distribute controlled substances in violation of 21 

U.S.C. §§ 841, 846. He was sentenced to 78 months of imprisonment, two years 

of supervised release, ordered to pay a $50,000 fine and a $100 special 

assessment, and denied federal benefits for five years. 

DISCUSSION

I. Whether the evidence was sufficient to establish venue in the 

Eastern District of Texas. 

This court reviews a venue challenge properly preserved by a motion for 

judgment of acquittal de novo. United States v. Romans, 823 F.3d 299, 309 

(5th Cir. 2016). The court considers the evidence in the light most favorable to 

the verdict and “will affirm where a rational jury could conclude that the 

government established venue by a preponderance of the evidence.” Id. 

(internal marks omitted); see also United States v. Strain, 396 F.3d 689, 692 

(5th Cir. 2005). In a conspiracy case, “venue is proper in any district where the 

agreement was formed or an overt act occurred.” United States v. Caldwell, 16 

F.3d 623, 624 (5th Cir.1994). An overt act is “performed to effect the object of 

a conspiracy, although it remains separate and distinct from the conspiracy 

 

2 Niamatali testified that often there was a line when the Medicare van dropped people 

off and that the van would then pick all of those people up at the same time. 

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itself.” Romans, 823 F.3d at 310 (quoting United States v. Pomranz, 43 F.3d 

156, 160 (5th Cir. 1995)).

In general, “[t]o prove a conspiracy, the government must prove (1) the 

existence of an agreement between two or more persons to violate the narcotics 

laws; (2) that each conspirator knew of the conspiracy and intended to join it; 

and (3) that each alleged conspirator participated in the conspiracy.” United 

States v. Morris, 46 F.3d 410, 414-15 (5th Cir. 1995). “Everyone alleged to be 

part of the same single conspiracy must share a common goal.” Id. at 415. 

Specifically with regard to a conspiracy to possess with intent to distribute 

controlled substances, “[t]he overall objective or goal [is] for everyone in the 

conspiracy to profit from the illicit purchase and selling of [controlled 

substances].” Id. 

Niamatali asserts that the evidence was legally insufficient to prove 

venue in the Eastern District of Texas and, as a result, the district court erred 

in denying his motion for a judgment of acquittal. At the close of the 

government’s case-in-chief, Niamatali moved for a judgment of acquittal under 

Rule 29 of the Federal Rules of Criminal Procedure. The district court denied 

the motion. After the defense rested, Niamatali renewed the motion and the 

court, again, denied it. Specifically, Niamatali asserts that the government 

failed to prove that his patients were co-conspirators, that he knew they would 

engage in further distribution, and that he intended and agreed to the shared 

purpose of further distribution.

Prior to trial, Niamatali submitted a proposed jury instruction saying 

that, for venue to be proper in the Eastern District, the government was 

required to show, by a preponderance of the evidence, that “either the 

agreement or one of the overt acts by the Defendant or by any co-conspirators 

took place in the Eastern District of Texas.” 

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After discussion and outside the presence of the jury, the district court 

reiterated, “[i]t’s got to be an overt act, although not necessarily of a criminal 

nature, in furtherance of the object of the conspiracy in the district” and “it has 

to be by a conspirator.” The court clarified, “[i]t doesn’t have to be by the 

defendant, or it doesn’t have to be by a named conspirator, but it has to be by 

a conspirator.” Also: “It could be initiated, perpetuated [sic] completed in the 

district, but it’s got to be by a conspirator, an overt act.”

After the government rested its case, Niamatali moved for a judgment of 

acquittal, arguing that the government had not proven prescriptions were 

filled in the Eastern District of Texas by a co-conspirator. The government 

countered that Herkert “identified three or four specific individuals by name 

who lived in the Eastern District of Texas, traveled to the defendant’s clinics, 

obtained drugs illegally, came back to the Eastern District of Texas, had the 

prescriptions filled, and then distributed them in the Eastern District.”3 The 

government referred to these specifically-named individuals as unindicted coconspirators and also argued that Niamatali was aware that he had patients 

from the Eastern District of Texas.4 Niamatali repeatedly objected to the 

evidence of these alleged co-conspirators, but the objections were overruled. 

Herkert also testified that she had interviewed patients who obtained 

prescriptions from Niamatali’s Northern District offices and then gave or sold 

them to someone in the Eastern District. The district court denied Niamatali’s 

motion for acquittal. However, the district court did include a venue 

instruction to the jury, which included the following language:

[T]he government must prove by a preponderance of the 

evidence that either the agreement or an overt act took place in 

 

3 The government later identified these unindicted co-conspirators as Nancy Diveto, 

Kelly Dimitra, Garrett Fletcher and Bobby Miller. 

4 Of the 25,000 prescriptions at issue, approximately 1,300 or 1,400 prescriptions were 

filled by patients who were residents of the Eastern District.

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this district, even if the defendant never set foot in the district. An 

overt act is an act performed to effect the object of a conspiracy, 

although it remains separate and distinct from the conspiracy 

itself. Though the overt act need not be of a criminal nature, it 

must be done in furtherance of the object of the conspiracy.

On appeal, the government now asserts that, because some prescriptions 

were filled in the Eastern District, illegal drugs were actually delivered there. 

Thus, the delivery “furthered the object of the crime because the profitability 

of the conspiracy depended on the illegal distribution of drugs to people who 

were either addicts or who resold to others.” More importantly, the 

government now abandons its argument made below that Niamatali’s patients 

were co-conspirators and concedes that there is no evidence of conspiracy

between Niamatali and his patients. To reiterate, Niamatali’s objections to 

testimony alleging unindicted co-conspirator patients were overruled and the 

government now concedes that the patients were not co-conspirators.

The government cites two cases that contradict its argument below and 

form the basis for its concession. In United States v. Delgado, 672 F.3d 320 

(5th Cir. 2012), this court said: “The buyer-seller exception prevents a single 

buy-sell agreement, which is necessarily reached in every commercial drug 

transaction, from automatically becoming a conspiracy to distribute drugs. The 

rule shields mere acquirers and street-level users, who would otherwise be 

guilty of conspiracy to distribute, from the more severe penalties . . . .” Id. at 

333. This is consistent with at least one other Circuit. See United States v. 

Wexler, 522 F.3d 194, 208 (2nd Cir. 2008) (“An agreement that one member of 

a conspiracy supply another with a drug—here by way of writing 

prescriptions—does not comprise an agreement to distribute that drug.”). The 

government is correct. The record fails to establish a conspiracy involving any 

patient. Despite its concession, the government maintains that venue is proper 

in the Eastern District.

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As stated previously, venue is proper “where the agreement was formed 

or an overt act occurred.” Caldwell, 16 F.3d at 624. An overt act is “performed 

to effect the object of a conspiracy.” Romans, 823 F.3d at 310. In a conspiracy 

to possess with intent to distribute controlled substances, the object of the 

conspiracy is for the co-conspirators to profit from the purchase and selling of 

controlled substances. Morris, 46 F.3d at 415. This court reiterated that in 

Romans, 823 F.3d at 310. 

Any conspiracy here must have involved Niamatali and his staff. The 

object of the conspiracy was the profit derived from the office visits in the 

Northern District of Texas wherein Niamatali often wrote prescriptions for 

controlled substances. Niamatali’s patients were required to pay prior to their 

visits because there had been problems with people leaving without paying. 

There is no evidence that Niamatali or his staff received any profit from 

patients actually getting prescriptions filled or transferring or selling any 

controlled substances. There is also no evidence that any patients were part 

of any agreement or conspiracy. That fact is now conceded by the government. 

The profit from the office visits was obtained regardless of whether patients 

actually got any prescriptions filled. Thus, none of the actions of patients after 

leaving the office was performed to effect the object of the conspiracy.

The government’s assertion that “Niamatali knew that the success of the 

conspiracy depended on addicts getting their fix and coming back for more” is 

not supported by the record. Herkert testified that surveillance revealed 

Niamatali worked very long hours. Further, there were potentially thousands 

of patients whose files were not seized because they received no prescriptions 

for any of the three targeted drugs and who Niamatali continued to treat up 

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until the time of trial.5 Again, one of the undercover officers was not able to 

get a prescription without prior documentation of injury. That same officer 

was also treated for other legitimate medical issues, such as high blood 

pressure, and had an electrocardiogram performed. The doctor also tried to 

steer her toward over-the-counter cough medicine for her cough, but she 

insisted that she needed promethazine with codeine. There was also evidence 

that patients sometimes got angry because Niamatali refused to give them 

prescriptions after examining them and the police had to be called to the clinic. 

Also, Niamatali testified about patients slashing his tires. Because 

Niamatali’s profit did not depend on patients performing any overt acts in the 

Eastern District and there was no agreement with the patients, there was no 

proper venue in the Eastern District.

For these reasons, we conclude that the district court erred in denying 

Niamatali’s motion for judgment of acquittal on the basis of improper venue. 

Accordingly, we reverse the ruling, vacate the judgment and remand. See 

Strain, 396 F.3d at 693, 697; see also United States v. Thomas, 690 F.3d 358, 

368-72 (5th Cir. 2012). However, upon questioning from the panel at oral 

argument, defense counsel conceded that this would not necessarily preclude

the defendant from being retried. Thus, we decline to decide whether a 

judgment of acquittal is the only proper remedy in this instance. Further, 

because we reverse the ruling, vacate the judgment, and remand for 

proceedings consistent with this decision, we find it unnecessary to address the 

merits of Niamatali’s other claims, one of which the Government also concedes.

REVERSED, VACATED and REMANDED WITH INSTRUCTIONS. 

 

5 Niamatali testified that he was still seeing on average about 30 patients per day at 

the time of trial, which was years after he surrendered his controlled substance registration 

and was no longer writing prescriptions for controlled substances.

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