US v. Casey, Crim. No. 89-00429-A.

• Decision Date: 30 September 1991
• Docket Number: Crim. No. 89-00429-A.
• Citation: 776 F. Supp. 272
• Parties: UNITED STATES of America v. James Robert CASEY.
• Court: U.S. District Court — Eastern District of Virginia

776 F. Supp. 272

UNITED STATES of America v. James Robert CASEY.

Crim. No. 89-00429-A.

United States District Court, E.D. Virginia, Alexandria Division.

September 30, 1991.

Michael Smythers, Asst. U.S. Atty., for the U.S.

J. Casey Forrester, Alexandria, Va., for James Robert Casey.

MEMORANDUM OPINION

ELLIS, District Judge.

Before the Court is the question whether a single conspiracy count in an indictment can support multiple 18 U.S.C. § 924(c)(1) firearms counts. At issue is an indictment charging defendant with one count of conspiracy, two counts of distribution or possession of cocaine, one count of flight to avoid prosecution, and four separate § 924(c)(1) firearms counts, each related solely to the single conspiracy count. For the reasons expressed here, the Court holds that one count of conspiracy constitutes a single predicate offense; accordingly, because there must be a separate predicate offense for each § 924(c)(1) firearms violation charged, the conspiracy count against defendant can support only one § 924(c)(1) charge.

BACKGROUND

Defendant awaits trial for alleged drug trafficking activity and related offenses. He stands accused of conspiring with a number of individuals to possess and distribute cocaine within the Eastern District of Virginia from the spring of 1988 through December 1989. A grand jury indicted defendant in August 1991. The indictment charges the following: (1) one count of conspiracy to distribute "crack" cocaine in violation of 21 U.S.C. § 846 (Count 1); (2) two counts of distribution or possession with intent to distribute "crack" cocaine in violation of 21 U.S.C. § 841(a)(1) (Counts 2 and 5); (3) one count of unlawful flight to avoid prosecution in violation of 18 U.S.C. § 1073 (Count 8); and (4) four counts of firearms use with narcotics violations in contravention of 18 U.S.C. § 924(c)(1) (Counts 3, 4, 6, and 7).

Each of the four firearms counts alleges the willful and unlawful use and carrying of a different weapon. The guns charged in each count are: (1) a .380 caliber handgun that defendant allegedly furnished to a co-conspirator on July 23, 1989 (Count 3); (2) a 357 magnum handgun that defendant allegedly furnished to the same co-conspirator on July 24, 1989 (Count 4); (3) a Titan .25 caliber stainless steel 6 shot automatic pistol that defendant allegedly possessed on or about July 24, 1989 (Count 6); and (4) a Davis Industries .22 caliber magnum Derringer pistol that defendant also allegedly possessed on or about July 24, 1989 (Count 7). The four separate § 924(c)(1) counts each charge that the firearms were used during and in relation to the single conspiracy count charged under 21 U.S.C. § 846 (Count 1). None of the § 924(c)(1) counts relates to any of the other offenses charged in the indictment.

Defendant has moved to dismiss Counts 4, 6, and 7 of the indictment, arguing that they are duplicative of Count 3 and that they violate the double jeopardy clause of the Fifth Amendment of the United States Constitution.

ANALYSIS

18 U.S.C. § 924(c)(1) establishes an enhanced punishment for the use or possession of a firearm during or in relation to a violent or drug trafficking crime.¹ The punishment imposed is "in addition to the punishment provided for such crime of violence or drug trafficking crime." Id. See also United States v. Luskin, 926 F.2d 372, 378 (4th Cir.1991) (describing § 924(c)(1) as an "add-on" provision). The sentence enhancement consists of a consecutive sentence of five years of imprisonment for use of a handgun, ten years for use of a short-barreled rifle or shotgun, and thirty years for use of a machine gun.

Charges under § 924(c)(1) must be brought in connection with either a crime or violence or a drug trafficking offense. 18 U.S.C. § 924(c)(1). A defendant must have used or carried a firearm "during and in relation to" such a crime. Id. The statute is ambiguous on whether separate predicate offenses are required to support separate § 924(c)(1) violations. It does not expressly specify whether a defendant who uses or carries more than one firearm in connection with a single predicate offense should receive more than one sentence enhancement. The legislative history is entirely silent on this point.

Where a statute is ambiguous and the legislative history silent, the Court is properly governed by the principle of lenity. This construction maxim holds that penal statutes are "strictly construed against the Government or parties seeking to exact criminal penalties and in favor of the persons on whom such penalties are sought to be imposed." United States v. Campbell, 704 F.Supp. 661, 664 (E.D.Va. 1989) (quoting 3 Sutherland Statutory Construction § 59.03, at 6-7 (4th ed.1974)); see also Bifulco v. United States, 447 U.S. 381, 387, 100 S.Ct. 2247, 2252, 65 L.Ed.2d 205 (1980); Rewis v. United States, 401 U.S. 808, 812, 91 S.Ct. 1056, 1059, 28 L.Ed.2d 493 (1971). "If Congress does not fix the punishment for a federal offense clearly and without ambiguity, doubt will be resolved against turning a single transaction into multiple offenses." Bell v. United States, 349 U.S. 81, 84, 75 S.Ct. 620, 622, 99 L.Ed. 905 (1955). See also United States v. Chalan, 812 F.2d 1302 (10th Cir.1987) (applying principle of lenity, citing Bell); United States v. Valentine, 706 F.2d 282 (10th Cir.1983) (same).

The Tenth Circuit decision in Chalan is especially instructive. There, the defendant was convicted of first degree murder, robbery, and two § 924(c)(1) counts of using a firearm in relation to a crime of violence. Applying the double jeopardy test set forth in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), Judge Seymour held that the murder and robbery charges were one for purposes of double jeopardy, and thus the defendant could not be sentenced to consecutive terms of imprisonment for those two convictions. With respect to the § 924(c)(1) convictions, the defendant argued that Congress could not have intended to allow separate consecutive sentences for firearms offenses when double jeopardy barred separate consecutive sentences for the underlying offenses. The court, finding that the statute and legislative history were unclear on the issue, invoked the rule of lenity and vacated defendant's conviction and sentence on the second § 924(c)(1) charge. Chalan, 812 F.2d at 1312-17.² The same result should obtain here. Because Congress has not clearly stated how § 924(c)(1) should be applied in cases where multiple guns are allegedly used in connection with one predicate offense, the rule of lenity requires that the statute be construed in favor of defendant.

While acknowledging that the legislative history is silent on the issue of punishment for multiple gun use, the government nevertheless insists that an intent to create multiple punishments is implicit in the statute. The government correctly contends that by enacting the statute Congress clearly expressed a "get tough on guns" policy. But broad, abstract policy statements are not a sufficient basis for construing a statute that imposes enhanced criminal penalties. More specific or focused policy objectives found in the legislative history are required. If Congress intends to permit multiple § 924(c)(1) enhancements to attach to a single predicate offense, it must clearly say so. Until such time, the rule of lenity allows the government to link only one § 924(c)(1) violation to each predicate offense charged. If multiple guns are used during and in relation to a single predicate offense, they may be incorporated into a single § 924(c)(1) count.³

Nor is this result at odds with Congress' strong anti-gun policy. One gun in the wrong hands can be just as deadly and dangerous as two. As a general rule, a criminal carrying ten guns poses only a marginally higher risk than a criminal carrying one gun. It would not reasonably further legislative policy to impose an additional mandatory minimum five-year consecutive sentence for each additional gun used in the commission of the same crime. Nothing in the legislative history supports this draconian result. In sum, it is the number of predicate offenses, not the number of guns, that determines whether separate and successive violations of § 924(c)(1) have occurred.

Although unresolved in this circuit, the result reached here is consistent with existing case law from other circuits. See United States v. Smith, 924 F.2d 889 (9th Cir. 1991); United States v. Henning, 906 F.2d 1392 (10th Cir.1990), cert. denied, ___ U.S. ___, 111 S.Ct. 789, 112 L.Ed.2d 852 (1991); United States v. Moore, 919 F.2d 1471 (10th Cir.1990); United States v. Henry, 878 F.2d 937 (6th Cir.1989); United States v. Fontanilla, 849 F.2d 1257 (9th Cir.1988); United States v. Chalan, 812 F.2d 1302 (10th Cir.1987); see also United States v. Luskin, 926 F.2d at 373 (dicta); but see United States v. Freisinger, 937 F.2d 383 (8th Cir.1991) (holding that multiple § 924(c)(1) convictions may attach to a single predicate offense, but applying the rule of lenity to reach the same practical result that multiple consecutive sentences may not be imposed). The Sixth Circuit first addressed the issue in United States v. Henry, 878 F.2d 937. There, the government charged defendant with two drug trafficking offenses and two firearm offenses. Each firearms count was related to both predicate offenses, so that each predicate offense supported two § 924(c)(1) counts. The defendant was convicted on both firearms counts. Rather than permitting multiple § 924(c)(1) enhancements, the court vacated one of the firearms convictions. 878 F.2d at 943-945. Judge Guy noted that the government could have successfully charged defendant with two § 924(c)(1) counts if it had correctly worded the indictment so as to attach only one § 924(c)(1) count to each predicate offense. Id. at 945.

The Tenth Circuit reached a similar result in United States v. Henning, 906 F.2d 1392. In that case, the...