U.S. v. Cooper

• Decision Date: 06 July 1992
• Docket Number: No. 91-2966,91-2966
• Citation: 966 F.2d 936
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Oscar COOPER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 936

966 F.2d 936

UNITED STATES of America, Plaintiff-Appellee, v. James Oscar COOPER, Defendant-Appellant.

No. 91-2966.

United States Court of Appeals, Fifth Circuit.

July 6, 1992.

Jim W. James, Bryan, Tex. (court appointed), for defendant-appellant.

Paula Offenhauser, Asst. U.S. Atty., Ronald G. Woods, U.S. Atty., Houston, Tex., Danny Ashby, Trial Atty. and Bruce A. Pagel, Deputy Director of Litigation, U.S. Dept. of Justice, Narcotic & Dangerous Drug Section, Washington, D.C., for plaintiff-appellee.

Appeal from the United States District Court, for the Southern District of Texas.

Before POLITZ, Chief Judge, and WILLIAMS and DUHE, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge:

This appeal results from a series of undercover purchases of crack cocaine, search warrant executions, and arrests at Cooper's Sportsman's Lounge in Houston, Texas. Appellant Cooper was convicted and sentenced under a seventeen-count indictment charging various firearm and narcotics offenses. He raises a number of challenges to his conviction: (1) the duplicitous nature and ambiguity of the jury verdict as to his conspiracy count; (2) the multiplicious nature of the convictions for leasing a crack house as well as firearm counts during and in relation to drug trafficking; (3) the insufficiency of the evidence on the firearm count convictions as well as the sentencing of such counts; (4) the district court's failure to give a requested jury instruction; (5) the district court's overruling of a suppression of evidence motion; (6) and finally, the prosecutor's improper commentary on Cooper's failure to testify. Finding no reversible error, we affirm.

I. FACTS AND PRIOR PROCEEDINGS

In March 1990, officers of the Narcotics Division of the Houston Police Department and officers of the Drug Enforcement Administration received information from a confidential informant that large quantities of crack cocaine were being sold from a private club located at 3355 Yellowstone Boulevard, Houston, Texas. The officers initiated an investigation and learned that crack cocaine was being sold from that address at Cooper's Sportsman's Lounge ("Lounge"), a highly fortified club located in the upstairs level of a building. To enter the premises, it was necessary to go through a series of doors, including one which electronically opened with a buzzer and another which was bolted by hand. Over an eight-month period, between March 2, 1990 and October 16, 1990, at least nine undercover purchases of cocaine were made and six search warrants were executed at the property. ¹ As a result of such searches, eleven firearms and over 234 grams of crack cocaine were seized from the Lounge.

Cooper's involvement was evident from the outset. On four occasions, Cooper was present at the Lounge during or immediately following the execution of the search warrants. On May 19, 1990, officers seized 86 grams of crack cocaine and recovered various ledgers and records specifically implicating Cooper. The ledgers clearly indicated that Cooper was involved in the distribution of crack cocaine and perhaps the supply of narcotics. ² During this particular search, Cooper arrived at 3355 Yellowstone during the execution of the search warrant, and told a DEA agent that he was the owner of both the club and the whole block of 3300 Yellowstone. Moreover, he stated that he was aware of the problems at the Lounge and of the frequent police searches. Most critically, when asked why the club was leased to drug dealers, Cooper responded: "Well, I got to make money."

On May 26, 1990, two uniformed Houston police officers entered the club to perform a club check. Upon entering the club, the officers observed a person in possession of crack cocaine in the bar area, and overheard two people arguing over $200 in an office east of the bar area. The officers knocked on the office door and were told to enter. They found Cooper sitting on a couch holding a bag which contained approximately two grams of crack cocaine. Further, the officers saw two 12-gauge shotguns in an open closet only six to eight feet from Cooper.

On October 4, 1990, Cooper was present at the Lounge when police officers undertook to execute a search warrant. Cooper denied entry and demanded to see their supervisor. Even after the supervisor arrived, Cooper refused to allow the search warrant to be executed. The police officers forced entry into the property. Cooper was observed in the hall area of the Lounge and the officers recovered a bag containing over one gram of crack cocaine on a window ledge near Cooper's position.

Less than two weeks later, Cooper was again present at the Lounge. When Henry returned to make another undercover cocaine buy, Cooper admitted Henry to the club and provided the crack that Henry purchased. Henry testified that upon entering the Lounge, he overheard a person ask the doorman to deliver a baby jar and a can of chewing tobacco to Cooper. A subsequent search revealed that both of these containers were filled with crack cocaine.

On March 18, 1991, a federal grand jury returned a second superseding indictment charging Cooper with seventeen drug-related offenses in connection with his operations at the Lounge. Count 1 alleged that Cooper had conspired from March 2 to October 16, 1990 knowingly and intentionally to distribute and possess with intent to distribute more than 50 grams of crack cocaine in violation of 21 U.S.C. § 841(a)(1), and knowingly and intentionally to manage and control and make available a place for the purpose of distributing and using crack cocaine in violation of 21 U.S.C. § 856(a)(2). Count 2 alleged that during the period of the conspiracy Cooper used and carried firearms during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1). Counts 4, 6, 9, 15, and 17 charged separate violations of § 924(c)(1), using or carrying a firearm during and in relation to a drug trafficking crime. Counts 3, 5, 7, 8, 10, 11, 12, 13, 14, and 16 charged Cooper with separate violations of 21 U.S.C. § 856--maintaining building for use as a crack house. On appeal, the government admits that it may be difficult to show that Cooper committed separate § 856 offenses on the dates alleged in counts 10, 11, 12 and 13. Consequently, the government is willing to dismiss them. Under the concurrent sentence doctrine, however, Cooper's sentence is not dependent on these counts.

The jury convicted Cooper on all seventeen counts. Prior to sentencing, the government dismissed count 2, and the district court sentenced Cooper to a total of 360 months in prison. He was sentenced to 188 months on the eleven drug offenses, 60 months on count 4, consecutive to the sentence for the drug crimes, and 112 months on counts 6, 9, 15, and 17, concurrent to each other but consecutive to the other sentences. Cooper timely appealed.

II. DISCUSSION

A. Duplicitous ³ Charge and Ambiguous Verdict Under Count 1

1. Duplicity

Count 1 alleged a conspiracy to distribute over 50 grams of crack cocaine (in violation of 21 U.S.C. § 841(a)(1)) and to maintain a crack house (in violation of 21 U.S.C. § 856(a)(2)). Cooper contends that count 1 charges two separate conspiracies and must be dismissed for duplicity or, alternatively, he must be resentenced. The district court instructed the jury as follows:

I want you to understand if you find the defendant guilty of the conspiracy charge in Count One, you need find that he conspired to agree to accomplish one of the purposes or objects of the conspiracy set out in Count One, but you must agree unanimously as to which object or objects he agreed to accomplish.

It's sufficient that the Government prove an agreement or understanding to commit only one of the unlawful objects in order to convict of the conspiracy count.

As the government correctly asserts, the instruction properly stated settled law. "The allegation in a single count of a conspiracy to commit several crimes is not duplicitous, for '[t]he conspiracy is the crime, and that is one, however diverse its objects.' " Braverman v. United States, 317 U.S. 49, 54, 63 S.Ct. 99, 102, 87 L.Ed. 23 (1942). See also United States v. Lyons, 703 F.2d 815, 821 (5th Cir.1983); United States v. Elam, 678 F.2d 1234, 1250 (5th Cir.1982); United States v. Avila-Dominguez, 610 F.2d 1266, 1270 (5th Cir.), cert. denied, 449 U.S. 887, 101 S.Ct. 242, 66 L.Ed.2d 113 (1980). We find that the challenged instruction correctly submitted the count to the jury and was not duplicitous.

2. Ambiguity in Jury Verdict

Cooper asserts that the jury's general verdict of guilty left open the possibility that the jury convicted him only of a conspiracy to violate § 856, as opposed to § 841 or both, and thus the penalty should be assessed accordingly. According to the government, Cooper objected at trial only to the conspiracy count on the ground of duplicity and clearly erroneous instructions. Cooper failed to object on the basis of the charge and of the verdict's ambiguity--in essence that there is no way to know which statutory offense was the basis of the conviction.

Having failed to object to the form of indictment, Cooper neither requested a special verdict as to the object of the conspiracy, nor did he object to the absence of a special verdict. When the jury returned its verdict without any indication of which offenses it had found he had conspired to commit, Cooper had had further opportunity to ask the court for a clarification. Again, he failed to do so. Cooper, in seeming disregard to Fed.R.Crim.P. 30, ⁴ called this matter to the district court's attention after the jury's verdict had been recorded and the jury had been discharged. In essence, Cooper remained silent until sentencing as to the danger of being found guilty without any ascertainment of which offense he was found to have violated.

Analogous to the appellant's actions in Williams v. United States, 238 F.2d 215, 218 (5th Cir.1956), cert. denied, ...