886 F.3d 146
D.C. Cir.2018Background
- Gary Cooper was convicted on five counts related to a scheme that caused Laborers Local 657 to pay STS General Contracting ~$1.7 million; payments included overpriced renovations and alleged permit fees, and some funds were used to benefit Union official Anthony Frederick.
- Count One charged a conspiracy to embezzle under 18 U.S.C. § 371 (substantive violation of 29 U.S.C. § 501); Count Two charged a conspiracy to make unlawful payments to a union official under § 371 (substantive violation of 29 U.S.C. § 186).
- The jury convicted Cooper on both conspiracy counts plus wire fraud and money‑laundering counts; two codefendants pled guilty and one testified for the government.
- At sentencing the court used the guideline for Count Two, U.S.S.G. § 2E5.1, as the controlling guideline and applied a 2‑level fiduciary enhancement under § 2E5.1(b)(1) on the theory that Cooper aided and abetted Frederick (a fiduciary), relying on § 2X2.1.
- The court imposed concurrent 68‑month sentences on each count; Cooper had not contemporaneously objected to the 68‑month terms exceeding § 371’s five‑year maximum.
- Cooper appealed, arguing (1) Counts One and Two are multiplicitous, (2) the fiduciary enhancement under § 2E5.1(b)(1) was wrongly applied to him, and (3) the conspiracy sentences exceeded the statutory maximum.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Multiplicity of conspiracy counts | Counts One and Two charge the same conspiracy and thus are multiplicitous | Government: counts allege distinct offenses (different statutory bases and some distinct actors/acts) | Counts One and Two are multiplicitous; one conviction must be vacated and district court to choose which one to vacate |
| Fiduciary enhancement under U.S.S.G. § 2E5.1(b)(1) | Cooper: enhancement inapplicable because he was not a union fiduciary and aiding‑and‑abetting § 2X2.1 does not convert another’s status into his | Government: Cooper aided and abetted Frederick (a fiduciary), so the enhancement applies via § 2X2.1 | Court erred: § 2X2.1 does not apply to a conspiracy guideline calculation under § 2X1.1; fiduciary status of a coconspirator is not an "act" attributable to defendant for § 2E5.1(b)(1) |
| Application of aiding‑and‑abetting guideline | Cooper: objection encompassed that he should not be treated as a fiduciary by virtue of another’s status | Government: district court permissibly used aiding‑and‑abetting principles to impose enhancement | Court: aiding‑and‑abetting guideline was the wrong vehicle to impose fiduciary enhancement on the conspiracy count |
| Above‑statutory‑maximum sentences on conspiracy counts | Cooper: 68 months exceeds § 371 five‑year statutory maximum | Government: conceded the sentences were above the statutory maximum | Above‑maximum sentences were plain error; remand for resentencing (court already vacated sentences on other grounds) |
Key Cases Cited
- Ball v. United States, 470 U.S. 856 (remand court with sentencing responsibility may vacate one of multiplicitous convictions)
- Weathers v. United States, 186 F.3d 948 (multiplicity and Rule 12(b) discussion)
- Blockburger v. United States, 284 U.S. 299 (same‑elements test for double jeopardy)
- Braverman v. United States, 317 U.S. 49 (conspiracy counts multiplicitous if they allege same agreement)
- United States v. Moore, 29 F.3d 175 (status‑based enhancements cannot be attributed to coconspirators who do not personally hold the status)