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USA v. Votrobek (and Castellanos) (11th Cir. 2017), Double Jeopardy Claim When Conduct is Exactly the Same, and Entrapment by Estoppel

March 2nd, 2017
Elizabeth Franklin-Best

This is a consolidated appeal out of the Eleventh Circuit.  These two gentlemen were co-defendants and I guess someone thought it would be a good idea to consolidate their appeals as well (personally, I don’t like the guilt spill-over effect consolidating criminal appeals can have). Anyway, Votrobek and Castellanos were convicted after a trial.  According to the Government, they learned how to operate a “pill mill” from another gentleman, Zachary Rose, who owned and operated three clinics in Jacksonville, Florida.  When law enforcement began investigating Rose, they left and opened their own clinic in Georgia.  Their clinic, Atlanta Medical Group (AMG) hired Dr. James Chapman as its physician.

The men operated their clinic in “the fashion typical of pill mills.” Id. at 2. What this means apparently is that the patients would pay cash for cursory examinations, and the pain prescriptions would be processed by the in-house pharmacy. To pass drug tests, patients would bring balloons contained urine, and they bribed staff.  Security guards searched patients for weapons. Appellants charged more for prescriptions than their books indicated, and they bought really nice cars with the undocumented cash.  Tenants began to complain about unkempt patients who arrived before business hours in cars with out-of-state license plates, and they loitered in the parking lot. A traffic stop of four AMG patients found them to be carrying very large amounts of prescription medication.

Votrobek’s Claim

Appellant, Votrobek was tried in Florida in connection with his involvement in the Rose clinics. After a 15-day trial, he was acquitted! But, less than 2 months later, he was indicted in Georgia, along with Castellanos and Dr. Chapman. After a four-week trial, he was convicted of all counts and sentenced to 15 years in prison. Votrobek argued on appeal that the district court 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.

The Double Jeopardy Clause of the Fifth Amendment provides “no person shall …be subject for the same offense to be twice put in jeopardy of life or limb.”  Specifically, the DJC protects against 1) “a second prosecution for the same offense after acquittal”; 2) ” second prosecution for the same offense after conviction”; and 3) “multiple punishments for the same offense.” Brown v. Ohio, 432 U.S. 161, 165 (1977). As the Court notes, however, the Clause 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).  The question of whether 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.

To determine whether Votrobek’s conviction violated DJ, the court needed to decide whether he committed two separate conspiracies in Florida and Georgia, or only one. To do so, it considered 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). Applying these factors, the Court concluded that the Georgia case did not violate DJ. The Court found that Votrobek ended his involvement in the Florida conspiracy one month before the Georgia conspiracy began (and even though there was overlap in the acts alleged in the indictments!).  It also found that the co-conspirators were different, the overt acts were different, and the places were different.  Even though the offenses charged were almost identical, that did not matter since “it is possible to have two different conspiracies to commit exactly the same kind of crime.”  So, Votrobek lost that claim and his appeal.

Castellanos’s Claims

Appellant, Castellanos raised two claims 1) the district court erred in denying his request for a Franks hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978), and 2) the district court erred by refusing to give a requested jury instruction on entrapment by estoppel.

As to the Franks claim– to challenge the veracity of an affidavit in support of a wiretap order under Franks, a defendant must make “a substantial preliminary showing” that 1) “a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit,” and 2) “the allegedly false statement is necessary to the finding of probable cause.”  Franks, 438 U.S. at 155-56.  here, the Court detailed the history of the investigation leading up to securing the wiretaps, and found that Castellanos failed to prove his claim.  The district court therefore did not abuse its discretion by refusing to hold a Franks hearing.

As to the entrapment by estoppel claim–The Court reviews the refusal to give a requested “theory of defense” instruction for an abuse of discretion.  A refusal is reversible only if the requested instruction 1) was a correct statement of the law, 2) was not adequately covered in the instructions given to the jury, 3) concerned an issue so substantive that its omission impaired the accused’s ability to present a defense, and 4) dealt with an issue properly before the jury.”  United States v. Westry, 524 F.3d 1198, 1216 (11th Cir. 2008) (per curiam).  Entrapment by estoppel “applies to a defendant who reasonably relies on the assurance of a government official that specified conduct will not violate the law.”  United States v. Alvarado, 808 F.3d 474, 484 (11th Cir. 2015).  Apparently, Castellanos called a Georgia Bureau of Investigation agent to discuss whether AMG was under investigation and asked if out-of-state license plates raised “red flags.”  The agent stated that he did not “volunteer anything” and that he did not advise AMG they were violating the law because “that would be contradictory to the investigation.”  The Court found that the district court did not abuse its discretion by not giving the entrapment by estoppel jury instruction.

Interesting issues that arise in white collar crime cases!  The big take-away– don’t run a pill mill.

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