U.S. v. Cappas, 93-3019

Citation29 F.3d 1187
Decision Date20 July 1994
Docket NumberNo. 93-3019,93-3019
PartiesUNITED STATES of America, Plaintiff-Appellant, v. John CAPPAS, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Barry R. Elden, Asst. U.S. Atty., Mark Prosperi, Asst. U.S. Atty. (argued), Crim. Receiving, Appellate Div., Chicago, IL, for plaintiff-appellant.

Jeffrey N. Cole (argued), Andrew T. Staes, Cole & Staes, Chicago, IL, for defendant-appellee.

Before ENGEL, * BAUER and CUDAHY, Circuit Judges.

CUDAHY, Circuit Judge.

John Cappas ran a cocaine ring that operated primarily in Chicago's southwest suburbs. He and several of his associates were charged in a 49-count indictment. Nineteen defendants pled guilty, though Cappas and a few others went to trial. Cappas was convicted on 24 of the 27 counts with which he was charged, including one count of conspiring to possess and distribute cocaine in violation of 21 U.S.C. Sec. 846, one count of running a continuing criminal enterprise (CCE), 21 U.S.C. Sec. 848, and three counts of using a gun in connection with a drug offense, 18 U.S.C. Sec. 924(c). He was sentenced to 45 years in prison: 30 year concurrent terms on the CCE and conspiracy counts (which were to run concurrent with the sentences on each of the remaining counts other than the three "use of a firearm" counts), and--as Sec. 924(c) then required--consecutive five-year terms on each of the three firearm counts.

On appeal, while we otherwise affirmed Cappas' conviction and sentence, we found that the district court may have considered Cappas' guilt on the conspiracy charge in sentencing him on the CCE count. United States v. Alvarez, 860 F.2d 801, 830-31 (7th Cir.1988), cert. denied, 490 U.S. 1051, 109 S.Ct. 1966, 104 L.Ed.2d 434 (1989), recognized that under Jeffers v. United States, 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977), a defendant cannot be punished separately for both CCE and conspiracy. Hence we vacated Cappas' sentence, and remanded the matter to the district court for re-sentencing. United States v. Bafia, 949 F.2d 1465, 1472-75 (7th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1989, 118 L.Ed.2d 586 (1992). See generally United States v. Herrera-Rivera, 25 F.3d 491 (7th Cir.1994) (following Bafia ).

On re-sentencing, Cappas pointed out another problem with the government's case. Three of the counts on which Cappas was convicted, counts 12, 28 and 29, were for using or carrying a firearm "during and in relation to" a "crime of violence or drug trafficking crime," 18 U.S.C. Sec. 924(c). Cappas argued that section 924(c) should be interpreted to require multiple predicate offenses before multiple gun enhancements may be imposed. On this theory, a defendant could not be convicted of multiple Sec. 924(c) counts for using multiple guns in a single drug trafficking offense. Rather, each Sec. 924(c) count needs to be tied to a different "crime of violence or drug trafficking crime." Eight courts of appeals have faced this question, seven of them coming down on Cappas' side. See United States v. Lindsay, 985 F.2d 666, 674 (2d Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 103, 126 L.Ed.2d 70 (1993); United States v. Luskin, 926 F.2d 372, 376-77 (4th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 68, 116 L.Ed.2d 43 (1991); United States v. Privette, 947 F.2d 1259, 1262-63 (5th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1279, 117 L.Ed.2d 505 (1992); United States v. Pineda-Ortuno, 952 F.2d 98, 104-105 (5th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 1990, 118 L.Ed.2d 587 (1992); United States v. Henry, 878 F.2d 937, 942-45 (6th Cir.1989); United States v. Nabors, 901 F.2d 1351, 1357-58 (6th Cir.), cert. denied, 498 U.S. 871, 111 S.Ct. 192, 112 L.Ed.2d 154 (1990); United States v. Clark, 928 F.2d 733, 737-38 (6th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 144, 116 L.Ed.2d 110 (1991); United States v. Sims, 975 F.2d 1225, 1233-37 (6th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1315, 122 L.Ed.2d 702 (1993); United States v. Taylor, 13 F.3d 986, 992-94 (6th Cir.1994); United States v. Fontanilla, 849 F.2d 1257, 1258-59 (9th Cir.1988); United States v. Smith, 924 F.2d 889, 894-95 (9th Cir.1991); United States v. Chalan, 812 F.2d 1302, 1315-17 (10th Cir.1987); United States v. Henning, 906 F.2d 1392, 1398-99 (10th Cir.1990), cert. denied, 498 U.S. 1069, 111 S.Ct. 789, 112 L.Ed.2d 852 (1991); United States v. Ross, 920 F.2d 1530, 1538-39 (10th Cir.1990); United States v. Rogers, 921 F.2d 1089, 1092-93 (10th Cir.1990), cert. denied, 501 U.S. 1211, 111 S.Ct. 2812, 115 L.Ed.2d 985 (1991); United States v. Moore, 958 F.2d 310, 314 (10th Cir.1992); United States v. Johnson, 977 F.2d 1360, 1376-77 (10th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1024, 122 L.Ed.2d 170 (1993); United States v. Parra, 2 F.3d 1058, 1070-71 (10th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 639, 126 L.Ed.2d 597 (1993); United States v. Hamilton, 953 F.2d 1344, 1345-46 (11th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 240, 121 L.Ed.2d 174 (1992). See also United States v. Casey, 776 F.Supp. 272, 275-78 (E.D.Va.1991), aff'd, 1992 WL 203955, 1992 U.S. App.Lexis 20232 (4th Cir.1992). We agree with our seven sister circuits (and the government does not here argue to the contrary) that have held that the use of multiple guns in a single drug conspiracy will not support multiple convictions under Sec. 924(c). 1

In light of this reasoning, Cappas pointed out to the district court that the indictments in counts 28 and 29 both alleged that guns were used in relation to the same predicate offense: conspiracy to possess and distribute narcotics as charged in count 2. And the third gun charge, count 12, alleged that Cappas used a gun in relation to two predicate acts, collection of a debt by extortionate means (as charged in count 11) and the general conspiracy charged in count 2. Reasoning that the jury might have convicted him three times of using a gun in connection with the same drug offense, Cappas moved the district court, pursuant to 28 U.S.C. Sec. 2255, to vacate his convictions on two of the three counts.

The government responded before the district court by advancing three arguments. First, it contended that because Cappas did not make this argument earlier, it could not be raised for the first time in a Sec. 2255 motion. Second, it argued that a single drug trafficking offense could support multiple section 924(c) convictions. And third, it insisted that the Sec. 924(c) conviction under count 12 was supportable by a separate crime of violence--the extortion charged in count 11--such that, even if the court did not accept either of its first two arguments, two of the three Sec. 924(c) counts could survive.

The district court rejected each of these arguments, and found that Cappas could be sentenced on only one of the three Sec. 924(c) counts. Accordingly, following our instructions on remand (regarding sentencing on CCE and conspiracy), the court sentenced Cappas to 19 years: concurrent 14-year terms on the conspiracy and CCE counts (with equal or lesser concurrent sentences on the other counts, other than the gun charge), and a single consecutive five-year term on count 12. The court dismissed counts 28 and 29. The government here appeals.

I

On appeal, the government has abandoned the first two arguments it presented before the district court. It no longer contends either that Cappas has procedurally defaulted on the argument he makes here (the district court having recognized that a defendant may advance--in a resentencing following the vacation of a previous sentence--any arguments that could have been brought the first time, see United States v. Atkinson, 979 F.2d 1219, 1223 (7th Cir.1992)), or that multiple Sec. 924(c) convictions for the use of multiple guns in connection with the same conspiracy are permissible.

Rather, it argues only that the jury in this case rested its conviction on count 12 on the use of a gun in connection with the extortion charged in count 11, not on the general conspiracy charged in count 2. Therefore, the government contends, count 12, as well as one of the two charges (counts 28 or 29) for using a gun in connection with the general conspiracy charged in count 2 may stand.

We agree with this general approach to the statute. While a defendant cannot be convicted twice under Sec. 924(c) for using two guns in connection with the same drug trafficking or violent offense, separate convictions are permissible so long as the court's instructions require the jury to connect each gun use to a separate predicate offense. See Henry, 878 F.2d at 945; Johnson, 977 F.2d at 1376-77; Chalan, 812 F.2d at 1315-17; Privette, 947 F.2d at 1262-63; Lindsay, 985 F.2d at 676-77. And by "separate offense," we mean no more than that the two cannot be the same offense for double jeopardy purposes. Therefore, if the jury finds that a defendant used one gun in connection with a narcotics distribution count, and another gun in connection with a general conspiracy (of which that distribution was a part), he may be convicted on two Sec. 924(c) charges. E.g. Pinkerton v. United States, 328 U.S. 640, 643-44, 66 S.Ct. 1180, 1181-82, 90 L.Ed. 1489 (1946) (commission of the substantive offense and a conspiracy to commit it are separate and distinct offenses).

The government thus argues that the gun use charged in count 12 is linked to a separate crime of violence--the extortion charged in count 11. Had the jury been required by its instructions to make this connection, this would be an easy case. But the jury did not receive any such instruction, so the government is left to argue that we can infer that the jury made this connection by examining the indictment and the evidence introduced at trial.

The indictment in count 12 charged that on March 3, 1987, Cappas used a particular gun--a Dan Wesson .357 revolver bearing serial number 95605--"during and in relation to" an attempt to...

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