RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 19a0082p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DIMITAR PETLECHKOV,

Defendant-Appellant.

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No. 18-5991

Appeal from the United States District Court

for the Western District of Tennessee at Memphis.

No. 2:17-cr-20344-1—Jon Phipps McCalla, District Judge.

Decided and Filed: May 1, 2019

Before: SUHRHEINRICH, THAPAR, and LARSEN, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Michael J. Stengel, STENGEL LAW FIRM, Memphis, Tennessee, for Appellant. 

David Pritchard, UNITED STATES ATTORNEY’S OFFICE, Memphis, Tennessee, for 

Appellee.

_________________

OPINION

_________________

THAPAR, Circuit Judge. Proper venue in a criminal case is an “essential part[] of a free 

and good government.” The Federal Farmer, in 2 The Complete Anti-Federalist 230 (Herbert J. 

Storing ed. 1981). The government failed to meet its constitutional obligation to prove venue for 

most of the charges it brought against Dimitar Petlechkov. Accordingly, we affirm in part, 

reverse in part, and remand.

>
No. 18-5991 United States v. Petlechkov Page 2

I.

FedEx provides shipping discounts to high-volume customers. In order to obtain such a 

discount, Dimitar Petlechkov lied to FedEx and claimed he was a vendor for a high-volume 

shipper. He used those discounted rates to offer shipping services to third parties, pocketing the 

profit margin between what he charged the third parties and what he paid FedEx. He shipped 

nearly 30,000 packages this way until FedEx finally caught him. 

The government charged Petlechkov with 20 counts of mail fraud. See 18 U.S.C. § 1341. 

A jury convicted him on each count. The district court sentenced Petlechkov to 37 months in 

prison and ordered him to pay approximately $800,000 in restitution. He now appeals his 

convictions, sentence, and restitution award. 

II.

Petlechkov challenges the sufficiency of the evidence underlying his mail fraud 

convictions. On appeal, “the relevant question is whether, after viewing the evidence in the light 

most favorable to the prosecution, any rational trier of fact could have found the essential 

elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 

(1979).

To convict Petlechkov of mail fraud, the government had to prove that he devised a 

scheme to defraud, used the mails in furtherance of that scheme, and intended to deprive the 

victim of money or property. 18 U.S.C. § 1341; United States v. Warshak, 631 F.3d 266, 310 

(6th Cir. 2010). A fraudulent scheme must include a material misrepresentation, which is a 

misrepresentation that could influence the decision of a “person[] of ordinary prudence and 

comprehension.” United States v. Jamieson, 427 F.3d 394, 415–16 (6th Cir. 2005). Materiality 

is the only element Petlechkov disputes on appeal. 

Petlechkov concedes that he made a misrepresentation but contends that it was not 

material. His misrepresentation was simple: he called FedEx’s account manager for General 

Dynamics—one of FedEx’s larger clients—and claimed he was a General Dynamics vendor 

entitled to its discounted shipping rate. Soon afterwards, FedEx linked Petlechkov’s account to 
No. 18-5991 United States v. Petlechkov Page 3

General Dynamics, and he was able to ship packages at its rate. All it took was a single phone 

call. Petlechkov makes two arguments for why his phone call could not have influenced a 

“person[] of ordinary prudence and comprehension.” Id. at 415–16. First, he claims vendors 

were not actually entitled to discounts under General Dynamics’s contract with FedEx. And this 

leads to his second argument: that federal law prohibits the unwritten discounts he received. 

Thus, according to Petlechkov, the FedEx employees who signed off on his discount request 

were not ordinary, prudent people—his bald assertion that he was a General Dynamics vendor 

should not have convinced FedEx to give him a discount.

Petlechkov’s arguments fail. First, whatever discounts the General Dynamics agreement 

required FedEx to provide, nothing in the record suggests that the agreement barred FedEx from 

being more generous than required. And indeed, FedEx’s standard “operating procedure” was to 

extend a customer’s discounts to its vendors. R. 75, Pg. ID 384–85, 397–98. Because FedEx 

had such a policy, an ordinary, prudent employee would follow it. Thus, Petlechkov’s false 

statement was capable of influencing FedEx’s decision. And indeed, it actually influenced 

FedEx’s decision—FedEx gave him a discount that lasted for several years. The fact that 

Petlechkov’s false statement caused its intended result is strong evidence that it was material. 

See United States v. Bohn, 281 F. App’x 430, 440 (6th Cir. 2008); Jamieson, 427 F.3d at 416. 

Petlechkov’s second argument fares no better. He claims that FedEx violated the 

Sarbanes-Oxley Act by extending him a discount. See generally Sarbanes-Oxley Act of 2002, 

Pub. L. No. 107-204, 116 Stat. 745. And he argues that a person of ordinary prudence would not 

have granted him a discount that violated federal law. But Petlechkov neither cites SarbanesOxley nor offers any legal analysis of it, and it is not our job to construct a legal argument for 

him. See McPherson v. Kelsey, 125 F.3d 989, 995–96 (6th Cir. 1997). Instead, Petlechkov 

makes a purely factual argument. He relies entirely on the testimony of a FedEx employee, 

Andrew Newborn. Thus, Petlechkov’s argument turns on interpretation of that testimony. 

Newborn did testify that in some circumstances unwritten discounts violate SarbanesOxley. But he never said that unwritten discounts like Petlechkov’s—contained in a written 

agreement but extended to someone not named in that agreement—violated Sarbanes-Oxley. 

And more specifically, Newborn never said that Petlechkov’s specific vendor discount violated 
No. 18-5991 United States v. Petlechkov Page 4

Sarbanes-Oxley. Despite Petlechkov’s arguments to the contrary, a rational juror could have 

found his misrepresentation material. 

III.

Next, Petlechkov argues that, even if he is in fact guilty, we should still dismiss the case 

against him because the government failed to prove that venue was proper in the Western 

District of Tennessee. 

A.

The government argues we should not reach the merits of Petlechkov’s venue objection 

because he “waived his challenge to venue by failing to raise it pre-trial.” Appellee Br. at 10. In 

doing so, the government’s brief bounces back and forth between the concepts of waiver and 

forfeiture. Though attorneys (and even courts) often use these concepts “interchangeably,” they 

are distinct. Brenay v. Schartow, 709 F. App’x 331, 336 n.1 (6th Cir. 2017) (citing United States 

v. Olano, 507 U.S. 725, 733 (1993)). As the Supreme Court has explained, “forfeiture is the 

failure to make the timely assertion of a right,” while “waiver is the intentional relinquishment or 

abandonment of a known right.” Olano, 507 U.S. at 733 (internal quotation marks omitted). 

The government’s brief exclusively uses the term “waiver” rather than “forfeiture,” and the 

government asserts that Petlechkov’s attorney “acknowledged to the government that venue was 

proper.” Appellee Br. at 10. So the government does appear to be making a waiver argument. 

But the government has not shown that Petlechkov’s attorney can singlehandedly waive 

his client’s right to be tried in a proper venue. The Supreme Court has distinguished between 

“tactical” rights (which can be waived by the defendant’s attorney) and “fundamental” rights 

(which can only be waived by the defendant himself). Gonzalez v. United States, 553 U.S. 242, 

250–51 (2008); see also McCoy v. Louisiana, 138 S. Ct. 1500, 1508 (2018). And as Justice 

Scalia explained in Gonzalez, distinguishing between tactical and fundamental is no easy task. 

See Gonzalez, 553 U.S. at 256–57 (Scalia, J., concurring in the judgment) (“Depending on the 

circumstances, waiving any right can be a tactical decision. . . . I know of no objective criterion 

for ranking rights.”). 
No. 18-5991 United States v. Petlechkov Page 5

But ultimately it does not matter because there is no evidence that either Petlechkov or

his attorney “intentional[ly] relinquish[ed]” Petlechkov’s right to proper venue. Olano, 507 U.S. 

at 733. The government relies solely on a purported phone call with Petlechkov’s attorney—a 

conversation that “left [the government] with the impression” that a venue challenge was not 

forthcoming. R. 75-1, Pg. ID 523. The details of the alleged conversation are not in the record. 

Petlechkov’s attorney testified that he had “no independent recollection of the conversation,” id. 

at 532, and the government admitted to the district court that there “was by no means a formal 

stipulation” on the venue issue. Id. at 523. The government, therefore, has not met its burden of 

proving the “intentional relinquishment or abandonment” of proper venue. See Olano, 507 U.S. 

at 733.

To the extent the government is claiming forfeiture, that argument fails as well. Again, 

forfeiture “is the failure to make the timely assertion of a right.” Id. Petlechkov did not object to 

venue until after the close of the government’s proof at trial, and typically venue objections are 

forfeited if not raised before trial. See Fed. R. Crim. P. 12(b)(3)(A)(i). But there is an exception 

to this general rule. Defendants are only required to raise venue objections before trial if they 

have notice of the alleged venue defect. Id. Thus, if a venue defect is not “apparent on the face 

of the indictment” and the “defendant does not have notice of the defect through other means,” 

then he does not need to object before trial. United States v. Grenoble, 413 F.3d 569, 573 (6th 

Cir. 2005). In those circumstances, the defendant can presume that the government will offer 

evidence at trial proving that venue is proper. But if the government fails to meet its burden at 

trial, then the defendant is free to raise the objection. Id.

Here, the government concedes that there was no venue defect apparent on the face of the 

indictment and does not argue that Petlechkov himself had some other reason to know of a defect 

before trial. Instead, the government claims the purported concession of venue by Petlechkov’s 

attorney shows that Petlechkov was on notice of a venue defect. The government cites only one 

case: United States v. Adams, 803 F.2d 722, 1986 WL 17714 (6th Cir. 1986) (table). But there, 

the defendant’s attorney “conceded [on appeal] that he knew well before trial” the basis for a 

venue objection and had failed to raise it. Id. at *9. Here, in contrast, Petlechkov’s attorney 

contests that he conceded venue below and does not make any concession on appeal either.
No. 18-5991 United States v. Petlechkov Page 6

Accordingly, as the government has not shown that Petlechkov waived or forfeited his 

venue objection, we must address the merits of Petlechkov’s venue argument.

B.

The Constitution requires that criminal defendants be tried in the place where they 

committed their alleged crimes. U.S. Const. art. 3, § 2, cl. 3; id. amend. VI. Determining proper 

venue is a two-step process. If the criminal statute has a specific venue provision, then courts 

must accept that congressional choice (assuming it is otherwise constitutionally permissible). If 

not, then courts determine the proper venue based on “the nature of the crime alleged and the 

location of the act or acts constituting it.” Travis v. United States, 364 U.S. 631, 635 (1961); see 

also United States v. Rodriguez-Moreno, 526 U.S. 275, 279 (1999). 

The government says we should skip to the second step and analyze the “nature of the 

crime alleged.” Travis, 364 U.S. at 635. But that is wrong: mail fraud has a specific statutory 

venue provision. It provides, in pertinent part, that offenses “involving the use of the mails” can 

be “prosecuted in any district from, through, or into which . . . mail matter . . . moves.” 

18 U.S.C. § 3237(a). As this circuit has explained, “[a] plain reading of the text” shows “that 

venue in a mail fraud case is limited to districts where the mail is deposited, received, or moves 

through.” United States v. Wood, 364 F.3d 704, 713 (6th Cir. 2004) (citing 18 U.S.C. § 3237(a)) 

(emphasis added). 

The government must prove proper venue for each count by a preponderance of the 

evidence. United States v. Beddow, 957 F.2d 1330, 1335 (6th Cir. 1992). And in this case, each 

count was tied to a specific package. Thus, the government had to prove each specific package 

moved through the Western District of Tennessee. Since the jury found that the government did 

so, Petlechkov concedes that we can only reverse if no rational juror could have come to that 

conclusion. United States v. Kernell, 667 F.3d 746, 750 (6th Cir. 2012); United States v. Cooper, 

40 F. App’x 39, 40 (6th Cir. 2002).

Counts 6, 13, and 19. The evidence showed that the packages underlying these three 

counts were all sent from Munford, Tennessee, which is in the Western District of Tennessee. 

The sender for each package was Aser Gruppe International. Aser Gruppe’s CEO Stephen 
No. 18-5991 United States v. Petlechkov Page 7

Osborn testified that his company generally shipped its packages from a FedEx drop box in 

Munford. Though Osborn (understandably) did not have a specific recollection of the three 

packages at issue, the government does not need to present direct evidence of venue. Instead, the 

government can prove venue based on a reasonable inference from circumstantial evidence. 

United States v. Charlton, 372 F.2d 663, 664–65 (6th Cir. 1967); 2 Charles A. Wright & Arthur 

R. Miller, Federal Practice & Procedure: Criminal § 307. Courts have found proof of venue in 

mail fraud cases based on general practices and circumstantial evidence like we have here. See, 

e.g., United States v. Holt, 899 F.2d 15, 1990 WL 37613, at *2 (6th Cir. 1990) (per curiam) 

(table) (finding proof of venue in a mail fraud case based on a reasonable inference from 

circumstantial evidence, even though the sender did not testify about the packages at issue); 

United States v. Martino, 648 F.2d 367, 400–01 (5th Cir. 1981). Since a rational juror could 

infer that Osborn followed his general practice and dropped the packages at the FedEx drop box 

in Munford, a rational juror could have subsequently found that the government proved venue 

for those Munford-related counts—6, 13, and 19. We affirm Petlechkov’s convictions on those 

counts. 

Counts 1–5, 7–12, 14–18, and 20. The packages underlying each of these counts were 

sent from, and delivered to, destinations outside of the Western District of Tennessee. So to 

prove venue for these counts, the government needed to show that the packages moved through 

the Western District of Tennessee on the way to their destinations. Wood, 364 F.3d at 713.

The government’s venue argument for these counts relies on how FedEx’s shipping 

process works. FedEx packages pass through hubs, where employees sort them by destination 

and then send them on their way. See Tony Vieira, Why Use A Hub and Spoke System, FedEx 

(April 16, 2009), https://about.van.fedex.com/blog/why-use-a-hub-and-spoke-system. The only 

hub mentioned during trial was the one in Memphis, Tennessee, which is in the Western District. 

But the government presented no evidence tying any particular package to that Memphis hub. 

Yet, the government argues, the jury could have reasonably inferred that each of the packages 

moved through it. 

But the government slices the record too thin. No witness testified that Memphis was 

FedEx’s only hub or even the primary hub. Indeed, the record shows that FedEx has “several 
No. 18-5991 United States v. Petlechkov Page 8

hubs” outside of Memphis, even though they were not specifically named. R. 75, Pg. ID 411. 

And unlike Counts 6, 13, and 19, there is no evidence of typical shipping practices, e.g., that 

FedEx typically sent packages from certain locations through its Memphis hub. Although the 

record reflects that FedEx’s worldwide headquarters is in Memphis, no witness said that means 

any particular package moved through FedEx’s separate Memphis hub.

The government has one final argument that applies only to the packages with 

international destinations. According to the government, the only international hub proven at 

trial was the Memphis hub. Thus, the government argues, the jury could have inferred that any 

packages shipped abroad must have moved through Memphis. If the evidence showed that 

Memphis was indeed FedEx’s only international hub, then that would sustain venue for the 

counts relying on packages with international destinations. But no one testified that Memphis is 

the only international hub; a witness just said that it is “an international hub.” Id. at 414 

(emphasis added). Nor did anyone testify about FedEx’s typical shipping procedures for 

international packages. So the counts relying on international packages are no different than the 

others. 

In sum, it is possible that some of the packages at issue went through the Memphis hub. 

But that is not enough. The government must prove venue count-by-count, and to do that it must 

present enough evidence to allow a rational juror to find venue by a preponderance of the 

evidence. See Wood, 364 F.3d at 713–14; United States v. Greene, 995 F.2d 793, 801–02 (8th 

Cir. 1993). No evidence cannot be a preponderance of the evidence. And there is simply no 

evidence, direct or circumstantial, that any specific package implicated in these counts ever 

moved through the Western District of Tennessee. Cf. Johnson v. Coyle, 200 F.3d 987, 994–95 

(6th Cir. 2000) (holding that no rational juror could have found the defendant guilty of 

kidnapping when the government did not present any evidence of kidnapping as defined by state 

law). Accordingly, no rational juror could have found that the government proved venue for 

Counts 1–5, 7–12, 14–18, and 20. We must dismiss Petlechkov’s convictions on these counts. 
No. 18-5991 United States v. Petlechkov Page 9

C.

Petlechkov did not argue that we should dismiss with prejudice—i.e., without giving the 

government a chance to try again. And the government did not address the issue either. But we 

have the discretion and obligation to explain the effect of our decision. See United States v. 

Taylor, 487 U.S. 326, 336 (1988).

This issue turns on the Double Jeopardy Clause of the Fifth Amendment. The Double 

Jeopardy Clause bars a retrial after an acquittal. U.S. Const. amend. V; Evans v. Michigan, 568 

U.S. 313, 318 (2013). An “acquittal” is “any ruling that the prosecution’s proof is insufficient to 

establish criminal liability for an offense.” Evans, 568 U.S. at 318. In contrast, procedural 

dismissals “unrelated to factual guilt or innocence” do not implicate double jeopardy concerns. 

Id. at 319. For instance, if a defendant successfully moves for dismissal based on pre-indictment 

delay, the Double Jeopardy Clause does not bar another prosecution against him. United States 

v. Scott, 437 U.S. 82, 95 (1978). 

A dismissal on venue grounds does not qualify as an “acquittal” for double jeopardy 

purposes. Though venue is a factual issue that the government must prove, it is not an element 

of the underlying criminal offense. United States v. Kaytso, 868 F.2d 1020, 1021 (9th Cir. 

1988). Accordingly, at least three of our sister circuits have held that a venue dismissal is not an 

“acquittal.” Kaytso, 868 F.2d at 1021; Haney v. Burgess, 799 F.2d 661, 663–64 (11th Cir. 1986); 

Wilkett v. United States, 655 F.2d 1007, 1011–12 (10th Cir. 1981) (“Venue is wholly neutral; it 

is a question of procedure, more than anything else, and it does not either prove or disprove the 

guilt of the accused.”). 

This is true even for mail fraud, where the test for venue—that mail moved through the 

district—resembles a substantive element of the offense. See Wood, 364 F.3d at 710, 713 (citing 

18 U.S.C. §§ 1341, 3237(a)). To prove the substantive offense, the government established that 

Petlechkov’s fraudulent scheme relied on mailing packages, a fact that he does not challenge. 

But proving venue required something more. The government needed to prove where those 

packages went. In this case, it had to prove that they moved through the Western District of 

Tennessee. The government failed to make that showing, but that failure does not change the 
No. 18-5991 United States v. Petlechkov Page 10

fact that Petlechkov committed mail fraud. Thus, we are dismissing the seventeen counts 

because of “reasons required by the Constitution or laws . . . unrelated to factual guilt or 

innocence.” Scott, 437 U.S. at 98 n.11. That means a dismissal without prejudice is appropriate. 

* * *

We affirm Petlechkov’s convictions on Counts 6, 13, and 19, and dismiss all remaining 

counts without prejudice. We need not address Petlechkov’s challenges to his sentence and the

restitution award because the district court will need to both resentence Petlechkov and 

recalculate that award. See Hughey v. United States, 495 U.S. 411, 412–13, 419–20 (1990);

Wood, 364 F.3d at 714.

We AFFIRM in part, REVERSE in part, and REMAND for proceedings consistent with 

this opinion.