United States v. Brian C. Weiler

652 F. App'x 913
CourtCourt of Appeals for the Eleventh Circuit
DecidedJune 21, 2016
Docket15-12981
StatusUnpublished

This text of 652 F. App'x 913 (United States v. Brian C. Weiler) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Brian C. Weiler, 652 F. App'x 913 (11th Cir. 2016).

Opinion

PER CURIAM:

Brian Weiler appeals his conviction on one count of conspiracy to possess with intent to distribute and to distribute oxy-codone, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), .and 846, and his 97-month sentence, imposed at the low end of the guideline range. The charge arose out of Weiler’s involvement with and work at pharmacies in Tampa, Florida that were operated as “pill mills” that dispensed narcotics, primarily oxycodone. On appeal, Weiler argues that the district court erred by: (1) denying his motion for a judgment of acquittal based on insufficient evidence; (2) admitting irrelevant, prejudicial evidence at trial; (3) denying his motions for a mistrial and for a new trial based on the admission of prejudicial evidence; (4) abused its discretion by denying his motion for a new trial based on the admission of irrelevant and prejudicial evidence; (5) denying him a safety-valve reduction at sentencing; (6) miscalculating the amount of oxycodone attributable to him; (7) denying him a mitigating role adjustment; and (8) imposing a procedurally and. substantively unreasonable sentence. After thorough review, we affirm.

I.

Weiler begins by raising various issues concerning evidence that was admitted at trial about VIP'Pharmacy, arguing that he was charged solely with a conspiracy at New Tampa Pharmacy. The indictment, however, charged that Weiler and twelve others, “from an unknown date through on or about” September 29, 2011, had conspired with each other and “with others, both known and unknown to the grand jury,” to possess with intent to distribute and to distribute oxycodone, in violation of 21 U.S.C. § 846. This broad language in the indictment plainly charged Weiler with a single, overarching conspiracy to distribute oxycodone, and covered Weiler’s activities with various conspirators at any location. Thus, Weiler does not expressly claim on appeal a material variance between the conspiracy evidence presented and the conspiracy charged in the indictment, nor could he. Instead, Weiler challenges the district court’s evidentiary rulings and the sufficiency’ of the evidence.

First, we are unconvinced by Weiler’s claim that the court erred by denying his motion for a judgment of acquittal based on insufficient evidence. We review de novo a denial of a judgment of acquittal, viewing the facts and drawing all inferences in the light most favorable to the government. United States v. Descent, 292 F.3d 703, 706 (11th Cir. 2002). The district court’s denial of “motions for judgment of acquittal will be upheld if a reasonable trier of fact could conclude that the evidence establishes the defendant’s guilt beyond a reasonable doubt.” United States v. Rodriguez, 218 F.3d 1243, 1244 (11th Cir. 2000). “It is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt, provided a reasonable trier of fact could find that the evidence establishes guilt beyond *916 a reasonable doubt.” United States v. Young, 906 F.2d 615, 618 (11th Cir. 1990). A jury is free to choose among reasonable constructions of the evidence. United States v. Vera, 701 F.2d 1349, 1357 (11th Cir. 1983).

The Supreme Court has held that in a conspiracy trial, the jury must consider each defendant’s case separately in determining his participation in the scheme, and must take care to consider evidence relating to each conspiracy presented, as it relates to the charged conspiracy. Kotteakos v. United States, 328 U.S. 750, 769-70, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). We will not reverse a conviction because a single conspiracy was charged in the indictment, while multiple conspiracies were proven at trial,- unless the variance between the indictment and the evidence is: (1) material, and (2) the material variance substantially prejudiced the defendant. United States v. Richardson, 532 F.3d 1279, 1284 (11th Cir. 2008). To determine whether a material variance existed, we consider whether, viewing the evidence in the light most favorable to the government, a reasonable juror could have found the existence of a single conspiracy beyond a reasonable doubt. Id.

To assess whether a jury could reasonably have found a single conspiracy beyond a reasonable doubt, we consider: (1) whether a common goal existed; (2) the nature of the underlying scheme; and (3) the overlap of participants. United States v. Huff, 609 F.3d 1240, 1243 (11th Cir. 2010). The government also must prove interdependence amongst co-conspirators. United States v. Seher, 562 F.3d 1344, 1366 (11th Cir. 2009). We’ve defined “common goal” broadly, with “common” meaning “similar” or “substantially the same.” Id. A single conspiracy is shown if a defendant’s actions facilitated the endeavors of other co-conspirators, or facilitated the venture as a whole. Id. Each co-conspirator does not have to be involved in every part of the conspiracy. Id. In United States v. Baker, 432 F.3d 1189, 1232-33 (11th Cir. 2005), abrogated on other grounds by Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), we held that a reasonable jury could have found the existence of a single conspiracy even though the defendant’s involvement in a drug trafficking scheme was limited. We explained that because the defendant was well acquainted with the other co-conspirators, the jury reasonably could have inferred that he was aware of the nature and scope of the scheme. Id. at 1233.

Here, Weiler says that the government offered evidence of several conspiracies, but did not present sufficient evidence of guilt as to his personal involvement with the New Tampa conspiracy. The record shows, however, that the jury heard more than sufficient evidence for it to reasonably conclude beyond a reasonable doubt that Weiler and his co-conspirators were involved in a single conspiracy that took place at both New Tampa and VIP Pharmacies. Among other things, the testimony showed that Weiler and the others shared a “common goal” — to work at a pain clinic, mainly dealing in oxycodone — and used a similar scheme, whereby Weiler worked at both pharmacies and distributed oxycodone to clients without prescriptions. In addition, testimony established that Weiler worked personally and closely with the VIP and New Tampa owners and employees, so it was reasonable for the jury to infer that he was aware of the nature and scope of the scheme. For example, Weiler’s New Tampa co-conspirator, Retsidistswe Griffith, testified that when she hired Weiler to work as a pharmacist, she knew Weiler could be trusted to cooperate in the conspiracy because he was close friends *917 with a Dr. Heromin, a doctor known to prescribe large quantities of oxycodone for no legitimate medical purpose.

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Bluebook (online)
652 F. App'x 913, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-brian-c-weiler-ca11-2016.