IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 91-2966 _____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES OSCAR COOPER,
Defendant-Appellant.
_______________________________________________________
Appeal from the United States District Court for the Southern District of Texas _______________________________________________________ (July 6, 1992)
Before POLITZ, Chief Judge, and WILLIAMS and DUHÉ, 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
multiplicitous 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
1 For clarity and brevity, we do not set out the specifics of each of the police instances of execution of the search warrants (which at trial were called raids). In essence, the modus operandi was as follows: the police, often in response to information provided by an informant, would enter the Lounge, sign the customer ledger, submit to a search for weapons, pay a dollar for admission, and purchase one rock of crack cocaine for $ 50. Further, unless
2 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.
relevant, we do not specify who made the purchases of the cocaine, who executed the search warrant, or who performed the raid. Cooper places significant emphasis on Eddie Henry, a police informant and cooperating individual, present in many of the transactions at the Lounge. At trial, Henry testified that he had been addicted to cocaine, although he repeatedly denied being on drugs during the investigation. He stated that he suffered a relapse around October 1990 and was in a detoxification center between October 1990 and January 1991. Testimony, however, revealed that Henry was admitted as a referral from Ben Taub Hospital for cocaine abuse to a detoxification center on September 5, 1990, and was released from the facility against medical advice on September 10, 1990, in the midst of his undercover investigation. Contrary to Cooper's contentions, however, we do not sit as a "de novo jury." United States v. Menesses, __ F.2d __, 1992 WL 107834 (5th Cir. May 22, 1992) (No. 90-2660). In the instant case, the jury convicted Cooper on all counts in spite of the credibility issue of the informant. We do not disturb this conviction. A jury is "free to choose among reasonable constructions of the evidence." United States v. Bell, 678 F.2d 547, 549 (5th Cir. 1982), aff'd, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983). 2 The testimony at trial revealed that the ledgers appeared to be a running inventory of a street level drug distribution business; further, the initials J.C. were present throughout the ledgers--for instance "$350.00 to J.C. for 7 stones."
3 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
4 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
5 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.
III. DISCUSSION
A. Duplicitous3 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
3 "`Duplicity' is the joining in a single count of two or more distinct and separate offenses." United States v. Lyons, 703 F.2d 815, 821 n.8 (5th Cir. 1983). The ban against duplicitous indictments derives from four concerns: prejudicial evidentiary rulings at trial; the lack of adequate notice of the nature of the charges against the defendant; prejudice in obtaining appellate review and prevention of double jeopardy; and risk of a jury's nonunanimous verdict. See generally 1 Charles A. Wright, Federal Practice and Procedure § 142 (2d ed. 1982).
6 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.
7 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, 352 U.S.
1024, 77 S.Ct. 589, 1 L.Ed.2d 596 (1957), Cooper did not request a
clarification of the indictment or request a new trial on the
ground of an incorrect charge. Consequently, unless a manifest
miscarriage of injustice has occurred, this Court will not consider
an appeal from error not timely called to the district court's
attention. Without deciding whether there was error, we find that
in any event the circumstances here do not merit a finding of a
4 The rule states in relevant part:
No party may assign as error any portion of the charge or omission therefrom unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which that party objects and the grounds of the objection.
8 manifest miscarriage of justice. See Williams, 238 F.2d at 221
(concluding that absent manifest injustice, "failure to seek relief
by way of motion to correct the indictment, or by any action at
time of the court's charge or after verdict, worked an effective
waiver of such error [ambiguous verdict]").
3. Sentencing
While Cooper's failure to make a timely objection to the
ambiguity of the verdict constitutes a waiver of that objection, he
may challenge the imposition of his sentence. United States v.
Mastrangelo, 733 F.2d 793, 800 (5th Cir. 1984) (concluding that
although the appellant's failure to object to the multiplicity of
the indictment before trial constituted a waiver of the
multiplicity objection with regard to any alleged error in the
indictment, the appellant could challenge the imposition of
multiple sentences for the alleged commission of one crime). Court
decisions have established the rule that a sentencing judge faced
with a conviction on a count that charged the violation of more
than one statute, but where the jury failed to specify the
violation found, is limited to imposing a sentence that does not
exceed the maximum penalty under the statute providing the least
severe punishment. In United States v. Orozco-Prada, 732 F.2d
1076, 1083-84 (2d Cir.), cert. denied, 469 U.S. 845, 105 S.Ct. 154,
83 L.Ed.2d 92, and cert. denied, 469 U.S. 845, 105 S.Ct. 155, 83
L.Ed.2d 92 (1984), the Court withheld judgment on appellant's
conviction for 30 days, allowing the government to consent to
9 resentencing under the statute within the limitation of the less
severe penalty, or in the alternative, absent the government's
consent, to vacate as to the count at issue and remand for a new
trial. See also United States v. Quicksey, 525 F.2d 337, 341 (4th
Cir. 1975), cert. denied, 423 U.S. 1087, 96 S.Ct. 878, 47 L.Ed.2d
97 (1976); Brown v. United States, 299 F.2d 438, 440 (D.C. Cir.)
(per curiam), cert. denied, 370 U.S. 946, 82 S.Ct. 1593, 8 L.Ed.2d
812 (1962); 8 James WM. Moore Et Al., Moore's Federal Practice
§ 8.03[2] (2d ed. 1992).
In the instant case, the less severe statute is § 856,
providing a penalty of up to 20 years imprisonment, as opposed to
§ 841, providing a penalty of up to life imprisonment. Cooper was
sentenced to 188 months, below the maximum penalty provided in
§ 856. Thus, according to the government, any error in failing to
solicit a special verdict from the jury on count 1 was harmless.
Cooper acknowledges the less severe sentencing alternative but
advocates that this less severe principle be applied in guideline
calculations. In essence, if his sentence may not exceed the
maximum penalty provided in § 856, it may also not exceed the
penalty provided in the sentencing guidelines for § 856 offenses.
Under Cooper's calculations, the sentence assessed for § 856 would
be between 27-33 months once the necessary increments for prior
criminal history are included.5
5 Section 856 is governed by U.S.S.G. § 2D1.8 which provides for a base offense level of 16. According to Cooper, assuming that the presentence report ("PSR") is correct concerning adjustments, there would be an upward adjustment of 2 for his role in the offense, giving a total offense level of 18.
10 The government asserts that this argument ignores § 1B1.2(d)
of the sentencing guidelines which provides that a conviction on a
conspiracy count charging conspiracy to commit more than one
offense is treated as if the defendant had been convicted of a
separate conspiracy count for each offense that he conspired to
commit. U.S.S.G. § 1B1.2(d) (Nov. 1991). Further, appellant's
argument ignores the commentary6 to § 1B1.2(d) stating that where
the jury's verdict fails to specify which of the charged offenses
were the objects of the conspiracy, the defendant may be sentenced
for the object offenses for which the court, were it sitting as
trier of fact, would convict the defendant. U.S.S.G. § 1B1.2(d)
comment. (n.5). See United States v. Tham, 960 F.2d 1391, 1399-400
(9th Cir. 1992) (finding that where the jury verdict failed to
specify whether it had found the appellant guilty on one or both
charges of conspiracy, U.S.S.G. § 1B1.2(d) was applicable).
More than sufficient evidence exists from which the district
court, sitting as a trier of fact, could have found that Cooper
conspired to violate § 841. Government witnesses testified to
innumerable crack cocaine sales at the Lounge between March and
October 1990. Further, during this seven-month period, eleven
firearms and over 234 grams of crack were seized from the Lounge.
6 See United States v. Anderson, 942 F.2d 606, 612-13 (9th Cir. 1991) (en banc) (finding that when reviewing the sentencing guidelines, courts should always consider the commentary and, if possible, construe the guidelines and its commentary in an internally consistent manner); see also United States v. Salazar, 961 F.2d 62, 64 n.1 (5th Cir. 1992) (citing Anderson with approval).
11 Cooper's involvement in the conspiracy under section 841 is
equally clear. On several occasions, undercover officers found
Cooper in his office in possession of crack--the same office where
narcotics inventory and accounting records were kept, where over
150 grams of crack cocaine and eight of the eleven firearms seized
were found, and where two pictures of Cooper and a nameplate, "J.C.
Cooper," were discovered. Of course, Cooper actually admitted that
he made the Lounge available to drug dealers for the purpose of
distributing crack cocaine. There is ample evidence in the record
to support a conviction for conspiracy to possess with intent to
distribute crack cocaine.
Our review of a sentence under the guidelines "is confined to
determining whether a sentence was `imposed in violation of law' or
`as a result of an incorrect application of the sentencing
guidelines.'" United States v. Nevarez-Arreola, 885 F.2d 243, 245
(5th Cir. 1989) (per curiam) (citing 18 U.S.C. § 3742(e)).
Further, we affirm applications of the guidelines when they are
based on factual findings that are not clearly erroneous. United
States v. Medina-Saldana, 911 F.2d 1023, 1024 (5th Cir. 1990). "A
factual finding is not clearly erroneous as long as it is plausible
in light of the record read as a whole." United States v. Sanders,
942 F.2d 894, 897 (5th Cir. 1991).
We find that the district court did not err in using § 2D1.1
(unlawful manufacturing, importing, exporting, or trafficking--
including possession with intent to commit these offenses) as
opposed to § 2D1.8 (renting or managing a drug establishment) for
12 purposes of calculating Cooper's base offense level. Not only was
the district court's assessment a correct application of the
guidelines, but also the district judge ultimately departed
downward from the guidelines, opting not to impose the recommended
188 month minimum sentence under a 36 offense level (range of 188-
235 months) for a § 841 violation. We find no clear error in the
district court's sentence under count 1, and we uphold it.
B. Multiple Counts on Making Building Available as a Crack House
Cooper was convicted on ten counts7 (each alleging a different
date) of making a building available for the purpose of unlawfully
distributing and using crack cocaine in violation of 21 U.S.C.
§ 856(a)(2).8 He contends that his indictment is multiplicitous.9
Using analogy to case law addressing the existence of a single,
7 On appeal, as stated above, the government opted to dismiss counts 10-13, but this has no bearing on Cooper's sentence. 8 To convict Cooper under § 856(a)(2), the jury had to find that Cooper (1) managed or controlled Cooper's Sportsman's Lounge (2) either as an owner, lessee, agent, employee or mortgagee and (3) knowingly and intentionally rented, leased or made available for use with or without compensation, the building for the purpose of unlawfully manufacturing, storing, distributing or using a controlled substance. United States v. Chen, 913 F.2d 183, 187 (5th Cir. 1990). 9 Multiplicity is the charging of a single offense in multiple counts of an indictment or information. United States v. Lemons, 941 F.2d 309, 317 (5th Cir. 1991) (per curiam). A multiplicitous indictment raises the danger that a defendant will receive more than one sentence for a single offense. United States v. Swaim, 757 F.2d 1530, 1537 (5th Cir.), cert. denied, 474 U.S. 825, 106 S.Ct. 81, 88 L.Ed.2d 66 (1985). See 1 C. Wright, at 469- 70.
13 ongoing gambling business,10 Cooper asserts that he violated § 856
only once and that the indictment unfairly converted his single,
continuing offense into multiple crimes. He states that this
produces great harm because, while these sentences run
concurrently, multiple § 856 convictions allow the government to
obtain multiple firearm convictions pursuant to 18 U.S.C. § 924,
sentences which run consecutively.
Congress establishes and defines the offenses in a statute.
See Sanabria v. United States, 437 U.S. 54, 70, 98 S.Ct. 2170,
2182, 57 L.Ed.2d 43 (1978) ("Whether a particular course of conduct
involves one or more distinct `offenses' under a statute depends on
. . . congressional choice.") (footnote omitted). Contrary to
Cooper's assertion, "the double jeopardy clause imposes no
restraints on the power of Congress to define the allowable unit of
prosecution and punishment where all the charges are brought in one
suit." United States v. McDonald, 692 F.2d 376, 377 (5th Cir.
1982), cert. denied, 460 U.S. 1073, 103 S.Ct. 1531, 75 L.Ed.2d 952
(1983). Thus, in deciding whether the district court could
properly impose multiple sentences, we must determine the allowable
unit of prosecution in § 856. United States v. Universal C.I.T.
Credit Corp., 344 U.S. 218, 221, 73 S.Ct. 227, 229, 97 L.Ed. 260
(1952). Our task is to discern Congress' intent by looking first
10 Cooper places particular emphasis on United States v. Bennett, 623 F.2d 52, 54 (8th Cir. 1980) (per curiam). In Bennett, the Court scrutinized 18 U.S.C. § 1955 which expressly defines the unit of prosecution in terms of a single illegal gambling business. The Court reasoned that separate convictions under that section would be proper only if different businesses were alleged and proved.
14 to the plain language of the statute and then to legislative
history and the overall statutory scheme of which it is a part.
See United States v. Anderez, 661 F.2d 404, 406 (5th Cir. Unit B
1981) (stating that "[o]ur starting point in interpreting statutes
must be the language of the statutes themselves"); United States v.
Davis, 656 F.2d 153, 158 (5th Cir. 1981) (in addressing a
multiplicity claim, stating that "[w]e are bound, however, to
review all sources from which legislative intent may be gleaned"),
cert. denied, 456 U.S. 930, 102 S.Ct. 1979, 72 L.Ed.2d 446 (1982).
See also 1 C. Wright, at 476-78.
We begin with the language of the statute itself. Section
856(a)(2) provides:
[I]t shall be unlawful to . . . manage or control any building, room, or enclosure, either as an owner, lessee, agent, employee, or mortgagee, and knowingly and intentionally rent, lease, or make available for use, with or without compensation, the building, room, or enclosure for the purpose of unlawfully manufacturing, storing, distributing, or using a controlled substance.
According to the government, section § 856(a)(2) indicates that
Congress has defined the allowable unit of prosecution by reference
to the number of times the defendant "rents," "leases," or "makes
available" a building for drug-related activities. In essence, if
the defendant makes the building available once, independent of the
length of time, he has committed only one crime. If he makes the
building available on more than one occasion, however, the
defendant has committed multiple crimes. Thus, Cooper's analogy to
those cases interpreting 18 U.S.C. § 1955, a statute which
15 expressly defined the unit of prosecution in terms of "an illegal
gambling business," is inapposite. The government also posits a
policy argument--if this Court adopts the "single business" theory
Cooper urges, drug offenders will lack incentive to stop their
operations even after they are caught; they would be subject only
to one conviction regardless of the number of times their
"business" was reopened.
But to the contrary, Cooper urges that 21 U.S.C. § 856(a)(2)
contains no statement in terms evidencing intent to make each
managing, controlling, renting, leasing or making available a
separate offense, and therefore separately punishable.
Consequently, Cooper asks this Court to invoke the doctrine of
lenity11 for the proposition that the indictment in each count of
"making available the use of the building" should not have
constituted separate offenses.12 The doctrine of lenity, however,
11 Lenity functions as a tool of statutory construction. When Congress fails to indicate the allowable unit of prosecution with clarity, doubt as to congressional intent should be resolved in favor of lenity for the accused. Bell v. United States, 349 U.S. 81, 83-84, 75 S.Ct. 620, 622, 99 L.Ed. 905 (1955). See also 1 C. Wright at 478 ("Since a determination that separate offenses are involved makes possible multiple punishment for the same conduct, unless Congress had indicated clearly that it contemplates separate crimes doubt will be resolved against turning a single transaction into multiple offenses.") (footnote omitted). 12 Cooper argues that the government's theory throughout the trial was that Cooper had leased the Lounge to Rosaline Pamela Campbell, known as Jamaica Pam; consequently, according to Cooper, only one offense had been violated--the act of executing one lease. In contrast, the government asserts that its theory was that Cooper had made the unit available on at least six occasions and received compensation each time; consequently, Cooper was guilty of multiple crack house violations. Our review of the record indicates that the government focused on "making the Lounge available" as opposed to merely leasing it.
16 does not control in all instances. Callanan v. United States, 364
U.S. 587, 596, 81 S.Ct. 321, 326, 5 L.Ed.2d 312 (1961) ("[The rule
of lenity] as is true of any guide to statutory construction, only
serves as an aid for resolving an ambiguity. . . . The rule comes
into operation at the end of the process of construing what
Congress has expressed, not at the beginning as an overriding
consideration of being lenient to wrongdoers.").
We conclude that the rule is inapplicable here. First, the
Supreme Court precedents which develop the rule as it applies to
multiple sentencing generally involve situations where a "single,
uninterrupted criminal act led to multiple convictions and
sentences." McDonald, 692 F.2d at 379 (footnote omitted).13
Second, the rule of lenity merits application only if after a
review of all applicable sources of legislative intent "the statute
remains truly ambiguous." Id. See also Davis, 656 F.2d at 158
("the `touchstone' of the rule of lenity is `statutory ambiguity'"
and should not be utilized "to `destroy the spirit and force of the
law which the legislature intended to enact'") (citations omitted).
13 See, e.g., Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980) (holding that the crime of rape is a lesser included offense of the crime of felony murder in the perpetration of rape, and that since the latter crime included all of the elements of the former, consecutive sentences were therefore improper); Simpson v. United States, 435 U.S. 6, 98 S.Ct. 909, 55 L.Ed.2d 70 (1978) (ruling that an individual act of bank robbery with a firearm cannot be punished with consecutive sentences for aggravated bank robbery and for using firearms to commit a robbery); Ladner v. United States, 358 U.S. 169, 79 S.Ct. 209, 3 L.Ed.2d 199 (1958) (finding that the single discharge of a shotgun constitutes only a single violation of a statute prohibiting assault on a federal officer even though two officers were injured).
17 Moreover, when asked to interpret an earlier drug law, the
Supreme Court stated that "Congress has manifested an attitude not
of lenity but of severity toward violation of the narcotics laws."
Gore v. United States, 357 U.S. 386, 391, 78 S.Ct. 1280, 1284, 2
L.Ed.2d 1405 (1958). It is a fair assumption that this attitude
has not diminished. See, e.g., H.R. 5484, 99th Cong., 2nd Sess.,
132 Cong. Rec. S27161, 27161 (September 30, 1986) (Sen. DeConcini)
("[T]his legislation sends the clear message to those who decide to
make their living in the insidious business of drug trafficking
that we are no longer going to tolerate their activities.
H.R. 5484 contains extremely stiff penalties for possessing,
manufacturing, importing, or distributing drugs.").
In its goal to curtail the threat of illegal narcotics,
Congress appeared particularly concerned about the impact of crack
cocaine. See, e.g., 132 Cong. Rec. S26433, 26447 (September 26,
1986) (Sen. Chiles) ("[The bill] will help our law enforcement
officials by strengthening criminal penalties for drugs like crack
cocaine. This is an absolutely essential first step. Current law
makes it very difficult to arrest and convict crack dealers and
traffickers."); id. at 26435 (Sen. Chiles) ("We have enhanced the
penalties for drugs, but especially for crack cocaine."). Finally,
Congress specifically sought the curtailment of crack houses. Id.
at 26447 (Sen. Chiles) ("Police also have difficulty arresting the
operators of crack houses, the places where users congregate to
purchase and use crack. When police raid these crack houses, the
dealers and users can easily dispose of the drugs, thus avoiding
18 arrest. This bill makes it a felony to operate such a house, to be
present at the house.") (Sen. Chiles); id. at 27180 (September 30,
1986) (stating that the bill "recognizes crack's insidious impacts
on neighborhoods by outlawing crack houses").
We conclude that the maintenance of a crack house constitutes
a separate offense each day it is continued. This Circuit has
upheld multiple convictions, as long as they encompass separate
transactions, even if motivated by a single financial scheme. See,
e.g., United States v. Guzman, 781 F.2d 428, 432 (5th Cir.) (per
curiam) (concluding that false name on two different documents in
same transaction constitutes two separate offenses under 18 U.S.C.
§ 1001, which prohibits the knowing and willful false
representation of material fact to a United States agency), cert.
denied, 475 U.S. 1143, 106 S.Ct. 1798, 90 L.Ed.2d 343 (1986);
United States v. McDonald, 692 F.2d. 376, 378 (5th Cir. 1982)
(finding that two separate physical deliveries of a controlled
substance on two different days, all part of a single financial
scheme involving the same buyer and sellers, constituted separate
criminal acts subject to consecutive sentences under 21 U.S.C.
§ 841(a)), cert. denied, 460 U.S. 1073, 103 S.Ct. 1531, 75 L.Ed.2d
952 (1983); United States v. Thompson, 624 F.2d 740, 742 (5th Cir.
1980) (upholding the conviction of a physician on three separate
counts of dispensing a controlled substance, in violation of 21
U.S.C. § 841(a)(1), for writing three separate prescriptions to the
same undercover investigator at the same time and in exchange for
the same payment).
19 Cooper's actions did not represent a single impulse, as Cooper
would have us find, but successive impulses, meriting separate
indictments. See Blockburger v. United States, 284 U.S. 299, 302,
52 S.Ct. 180, 181, 76 L.Ed.2d 306 (1932) (citation omitted)
(finding "`successive impulses . . . even though all unite in
swelling a common stream of action'" and holding that each of
several successive sales of narcotics, even if made to same person,
constitutes a distinct offense, regardless of how closely sales
follow each other). Significantly, on at least six occasions,
narcotics officers legally searched the club, seized all drugs and
firearms, arrested the suspects, and effectively closed down the
crack house. Nonetheless, after each raid, Cooper and his
accomplices returned to the Lounge, further fortified it, and
resumed its operation.
We conclude that Section 856 is properly interpreted to
provide that each unlawful "making available" of a building is a
distinct offense. Cooper committed a separate offense every day he
made the building available.
The cumulative punishments were properly imposed on the facts
of this case. We adhere to the government's decision to dismiss
counts 10-13, and find that Cooper's convictions on counts 3, 5, 7,
9, 14, and 16 should be upheld.
We have considered carefully Cooper's remaining contentions
and found them to be without merit. They do not raise issues
serious enough to justify discussion.
We affirm the decision of the district court in all respects.
20 AFFIRMED.