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Multiplicity and Illegal Sentence–When two alleged conspiracies are but one; erroneous enhancement and a sentence exceeding the statutory maximum: United States v. Gary Cooper, _ F.3d _ (D.C. Circuit, No. 17-3015 (March 30, 2018).

How often does one see a multiplicity victory? Not that often. Gary Cooper (per Judge Henderson, “not that one”), was convicted on a five-count indictment for his role in a scheme to steal from a labor union. On appeal, he successfully argued that the two charges (18 U.S.C. were in effect one and the same and therefore multiplicitous.  Because his sentence rested on an erroneous application of a U.S.S.G. § 2E5.1(b)(1) enhancement, Mr. Cooper pointed out that it was further marred. And finally, Mr. Cooper added that his 68-month sentences exceeded the statutory maximum provided for the conspiracy, wire fraud and honest services fraud counts (18 U.S.C. §§ 371, 1343, 1346)

In agreeing with Mr. Cooper, the panel (Henderson, Tatel and Williams, JJ) first examined the standard of review. Brushing aside the Government’s insistence that the multiplicity argument was forfeited, Judge Henderson found that the defense’s pretrial motion to dismiss (Rule 12(b), FED. R. CRIM. P.)  preserved the issue . (Slip. Op. at 8-9).

Moving on, and applying a de novo standard of review, Judge Henderson examined the two conspiracy counts to determine whether two counts of the same indictment charged a violation of the general conspiracy statute, 18 U.S.C. § 371?  “The question is, then, whether the counts charge ‘the same act or transaction”—i.e., the same conspiracy—at all.   (Slip. Op. at 10) (quoting and citing Blockburger v. United States, 284 U.S. 299, 304 (1932); Braverman v. United States, 317 U.S. 49,  52,54 (1942) (conspiracy  counts  are  multiplicitous  if  they  charge same agreement  under same conspiracy  statute); Ward  v. United States, 694 F.2d 654, 661 (11th Cir. 1983) (same, citing additional cases)).  Referring to United States v. Gatling, 96 F.3d 1151, 1152 (D.C. Cir. 1996), and applying the test used for double jeopardy case, viz., allegations of “common purpose, overlaps of participants and time, location where acts occurred, and interdependence,” the Circuit found that “[h]ere, all the factors point in the same direction: Counts One and Two charged the same conspiracy.” (Slip Op. at 11).

After cataloguing the indictment’s allegations and considering the trial evidence and prosecution’s closing argument, as permitted under Ward v. United States, 694 F.2d at 661-62, the panel instructed the district judge to vacate one of the multiplicitous convictions. (Slip Op. at 11-15).

Next, Judge Henderson found that it was necessary to “pinball through the Guidelines Manual as a whole” to assess Cooper’s claim that his sentence was improperly enhanced. (Slip Op. at 15). Using a de novo standard of review to analyze Cooper’s legal claim, Judge Henderson explained that the proper course here, where there were multiple counts of conviction, was “to use ‘the offense guideline that produces the highest offense level and advisory imprisonment range’” under U.S.S.G. § 3D1.3(b). (Slip Op. at 15-16). Once more rejecting a claim that the argument was forfeited (Id. at 18 n./7), Judge Henderson gently noted that the trial judge had taken “a wrong turn” by adding two points to Cooper’s offense level for aiding and abetting the commission of a crime by a fiduciary of the union. The mistake lay in the fact that Cooper wasn’t a union fiduciary. Under U.S.S.G. § 2X1.1 and U.S.S.G. § 2E5.1, which govern the conspiracy offense and the substantive offenses, respectively, Cooper’s conspiring with one who was a fiduciary did not justify resorting to U.S.S.G. § 2X1.2, the aiding and abetting guideline. Because “[a]s a matter of plain English” the co-defendant/fiduciary’s status was neither an act nor omission attributable to Cooper, the enhancement couldn’t be pinned on him. (Slip. Op. at 19-21) (citing United States v. Moore, 29 F.3d 175, 176 (4th Cir. 1994) (conspirator’s abuse of trust enhancement inapplicable to co-conspirators who don’t hold such a position).

Finally, the Government conceded and the panel found plain error, notwithstanding Cooper’s failure to object below, to two concurrent sentences of 68 months for crimes whose statutory ceilings are five years. (Slip Op. at 21).

A nice clean and sweet sweep for the Dynamic Duo of Jonathan Zucker and Patty Daus, who hit the proverbial trifecta. And whoever knew that in another life, Judge Henderson is a movie buff?

  • Steve Leckar, of counsel to Kalbian Hagerty LLP, enjoys following and occasionally arguing in the D.C. Circuit.