U.S. v. Bafia

• Citation: 949 F.2d 1465
• Decision Date: 27 December 1991
• Docket Number: Nos. 89-2167,89-2168,89-2414 and 89-2561,89-2322,s. 89-2167
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Brian BAFIA, Michael Kerridan, John Cappas and Philip LaPorta, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1465

949 F.2d 1465

UNITED STATES of America, Plaintiff-Appellee, v. Brian BAFIA, Michael Kerridan, John Cappas and Philip LaPorta, Defendants-Appellants.

Nos. 89-2167, 89-2168, 89-2322, 89-2414 and 89-2561.

United States Court of Appeals Seventh Circuit.

Argued April 5, 1991.

Decided Dec. 10, 1991.

Rehearing Denied Dec. 27, 1991 in No. 89-2167.

Rehearing Denied Jan 9, 1992 in No. 89-2561.

Rehearing Denied Jan. 29, 1992

in Nos. 89-2322, 89-2414.

David E. Bindi, Asst. Atty. Gen. (argued), Mark S. Prosperi, Asst. U.S. Atty., Office of the U.S. Atty., Criminal Div., Chicago, Ill., for U.S.

Jeffrey B. Steinback, Marc W. Martin (argued), Genson, Steinback & Gillespie, Chicago, Ill., for Philip LaPorta.

Jeffrey N. Cole, Chicago, Ill. (argued), for John Cappas.

Jerry B. Kurz (argued), Kathryn Hall, Hall & Kurz, Chicago, Ill., for Michael Kerridan.

Charles K. Piet and Alan S. Nagel, Grodner & Nagel, Chicago, Ill. (argued), for Brian Bafia.

Before BAUER, Chief Judge, and CUMMINGS and POSNER, Circuit Judges.

BAUER, Chief Judge.

On December 1, 1988, a federal grand jury returned a 49-count superseding indictment charging defendants-appellants John Cappas, Brian Bafia, Michael Kerridan, Philip LaPorta, and eighteen others with participating in a cocaine distribution network that operated primarily in the southwestern suburbs of Chicago from 1985 through 1988. LaPorta pleaded guilty; Cappas, Bafia, and Kerridan, however, did not--they were tried and convicted. In this consolidated appeal, Cappas, Bafia, Kerridan, and LaPorta challenge various aspects of their convictions and sentences. Because we find no merit in their claims, we affirm the convictions of all four defendants and the sentences of Bafia, Kerridan, and LaPorta. Yet, because we hold that the district court may have misread the law regarding the appropriate sentence for a continuing criminal enterprise and a conspiracy, we remand Cappas' case to the district court for resentencing.

I.

This sad tale of greed and addiction began in the spring of 1985, the year after John Cappas graduated from high school. At that time, Cappas lived with his parents in Oak Lawn, Illinois, and earned an honest income working at his father's liquor store. But the evidence at trial showed that even in 1985, Cappas had begun to supplement his income by selling cocaine. Over the next three years, Cappas grew from a small-time distributor into a kingpin and organizer of a cocaine distribution network. Cappas never used cocaine; in fact, he had a rather low opinion of those who did. Cappas had another addiction: it was his ambition to increase his volume of cocaine sales to the point where he would be able to distance himself from the actual distribution of cocaine, leaving that to his small army of distributors, and concentrate solely on the acquisition of cocaine and the collection of debts.

In the fall of 1985, Cappas left his parents' home and moved into an apartment in Justice, Illinois. This move allowed him to store his supply of cocaine and an impressive armory of firearms in his apartment. Cappas' move coincided with a significant expansion of his operation. By the end of 1986, Cappas could boast of having numerous distributors on the street selling his product in larger and larger quantities. Cappas would purchase cocaine from various suppliers. He then would dilute or "cut" the narcotic with Inositol, a white powdery vitamin compound. Cappas would sell this cocaine-Inositol mixture to his distributors on credit; the distributors would resell the narcotic to consumers, thereby earning enough money to pay their debt to Cappas and put something in their pockets. Bafia, Kerridan, and LaPorta joined the Cappas organization as distributors in 1986.

Cappas maintained control over his expanding network of distributors through the use of pagers, supplied at his expense. Each member of the network was assigned a code number. When a distributor needed cocaine, he would page Cappas, who would in turn page whoever was assigned as "Custodian" of his supply. (As his organization grew, Cappas demonstrated an aversion to handling the cocaine himself. By the end of 1986, Cappas stored his supply of cocaine in lockboxes at various locations and appointed a series of individuals "Custodians" of the stash.) Cappas also controlled his enterprise with violence or the threat of violence. The cocaine business is fueled by credit; it is not surprising that the collection of cocaine debts was a predictable and recurring problem. Cappas' solution was to recruit various individuals who would help him "persuade" drug debtors to pay their debts. Cappas' "persuaders" were known to fire shots into a debtor's home and explicitly threaten violence and death to those who refused to pay.

If Cappas' lifestyle was any measure of his entrepreneurial success, then there is no doubt that John Cappas was quite a businessman. During 1986 and 1987, Cappas purchased a home for $100,000 in Lockport, Illinois; two new Corvettes each costing over $29,000 (and both equipped with stereos and custom features totalling over $21,000); a third special edition Corvette costing over $50,000; a Rolex Presidential wristwatch for $11,600; a snowmobile and trailer costing over $5300; and for his girlfriend, a $5000 fur coat and $1900 gold and diamond necklace spelling out the words "Spoiled Brat." Also in 1987, Cappas started a business called "Flash Sweats" that sold sports apparel. For his $30,000 investment, Cappas received a 60% share of the business which turned a profit of $6568 in 1987. For 1987, Cappas reported a taxable income of $14,605. The Internal Revenue Service calculated that Cappas underreported his 1987 income by over $150,000.

Nevertheless, by the end of 1987, the Cappas organization had begun to crumble. Federal authorities had infiltrated Cappas' network; a Special Agent of the Drug Enforcement Agency successfully posed as a cocaine purchaser to one of Cappas' distributors. (We suspect that it was not difficult to identify Cappas as a drug dealer--for instance, the license plate on his Corvette spelled "Coke." The difficulty--and the danger--lay in the collection of admissible evidence to be used against Cappas and his distributors.) On March 2, 1988, state and federal officers executed a search warrant at Cappas' house in Lockport. The officers seized numerous records of the cocaine network. One month later, Cappas' house was seized pursuant to court order.

Following several more months of investigation, Cappas and his distributors, including Bafia, Kerridan, and LaPorta, were arrested. Bafia admitted that, in 1986 and 1987, he sold five to ten ounces of drugs per week for Cappas, and that he participated in using extortionate means to collect debts for Cappas. Kerridan stated that he began buying cocaine from Cappas in 1986, and was soon distributing five ounces a month to twenty-five customers. He also admitted to participating in Cappas' plot to murder a rival drug dealer.

After a jury trial, Cappas was convicted on one count of engaging in a continuing criminal enterprise ("CCE"), in violation of 21 U.S.C. § 848 (1988); one count of conspiring with the other defendants to distribute and possess with the intent to distribute cocaine, in violation of 21 U.S.C. § 846 (1988); thirteen counts of distributing cocaine, in violation of 21 U.S.C. § 841(a)(1) (1988); three counts of using extortionate means to collect extensions of credit, in violation of 18 U.S.C. § 894 (1988); three counts of carrying a firearm in relation to crimes of violence and drug trafficking, in violation of 18 U.S.C. § 924(c)(1) (1988); one count of using the telephone to facilitate a drug trafficking offense, in violation of 21 U.S.C. § 843(b) (1988); and two counts of underreporting his income on his tax returns, in violation of 26 U.S.C. § 7206(1) (1988).

Bafia and Kerridan each were convicted on the conspiracy count, and on one count of using a firearm in relation to crimes of violence and drug trafficking. Bafia was also convicted on one count of extortion. LaPorta pleaded guilty to the two counts with which he was charged: the conspiracy count and attempting to collect an extension of credit by extortionate means.

Cappas was sentenced to a total of 45 years imprisonment: on the CCE count and the conspiracy count, concurrent terms of 365 months imprisonment, to run concurrently with the sentences on the remaining counts, except the firearms counts; and on the three firearms counts, consecutive terms of five years for each count. Bafia was sentenced to concurrent terms of 188 months on the conspiracy and extortion counts, and to a consecutive five year term on the firearm count. Kerridan was sentenced to 235 months on the conspiracy count, and to a consecutive five year term on the firearm count. LaPorta was sentenced to a term of 97 months on the conspiracy count, and a five year term of probation on the extortion count. All four defendants filed timely notices of appeal.

II.

Because the defendants raise different issues on appeal, we will consider each defendant in turn.

A. Issues Raised by Cappas

Cappas first argues that his conviction for engaging in a CCE must be reversed because the district court improperly instructed the jury on the elements of the offense, specifically, the number of conspirators required to constitute "in concert" criminal activity. Cappas maintains that the district court erred by refusing to give an instruction he tendered that would have required the jury to find that Cappas supervised five or more persons simultaneously in order to be found guilty of engaging in a CCE.

The refusal to give an instruction tendered by the defendant is not error if the instruction is not a correct statement of the law. United States v. Anderson, 798 F.2d 919, 925 (7th Cir.1986). To prove that a defendant engaged in a CCE, the government must show that the defendant (1) committed a predicate...