United States v. Brian Bafia, Michael Kerridan, John Cappas and Philip Laporta

Bradach was that the counts for which substantially different

convicted involved general

harm under the rule set forth government has provision. Where the 3D1.2(b)

conceded that all conditions of § satisfied, explicit dictates of

have been guideline may ignored.5 not be reasons, foregoing judgment

For the except

of the district court is affirmed special assessment is reduced to $550.6 America,

UNITED STATES of

Plaintiff-Appellee, Kerridan, BAFIA,

Brian Michael John Philip LaPorta,

Cappas and

Defendants-Appellants. 89-2167, 89-2168, 89-2322,

Nos.

89-2414 and 89-2561. Appeals,

United States Court of

Seventh Circuit.

Argued April

Decided Dec.

Rehearing Denied Dec.

1991 in No. 89-2167.

Rehearing Denied Jan

1992 in No. 89-2561.

Rehearing Denied Jan. 89-2322,

in Nos. 89-2414. Underwood, guidelines pertaining grouping 5. The under recently Florida, 1991); Effective No § 3D1.2 were amended. Cir. 482 U.S. see also Miller 1, 1991, 2J1.3(d) guidelines specifical 2446, 2451, vember § L.Ed.2d 351. ly provides the case of counts of “[i]n 1.3(d) application 2J would in Since the perjury arising perjury or subornation of sentence, crease the defendant’s testimony given, given, separate or to be retroactively guideline employ this case. group together proceedings, do not the counts Closely-Related (Groups under 3D1.2 special imposed 6. The assess- district court Counts).” Although guideline this new would guide- assessment on the ten $600. ment of differently, have determined the outcome the ex $500, been with another line counts should have prevents applica post clause retroactive facto pre-guideline which was a $50 for Count changed guideline change tion of a where the count. disadvantage would the defendant. BAUER, Judge, and Before Chief POSNER, Judges. Circuit CUMMINGS BAUER, Judge. Chief grand On December federal superseding in- jury returned 49-count defendants-appellants charging dictment Bafia, Kerri- Cappas, John Brian Michael LaPorta, dan, eighteen others Philip participating in a cocaine distribution operated primarily in network that Chicago from southwestern of suburbs pleaded through 1988. LaPorta Kerridan, Bafia, guilty; Cappas, and how- ever, they tried convict- did and not — appeal, Cappas, ed. In this consolidated Kerridan, Bafia, challenge LaPorta aspects various of their convictions find in sentences. Because we no merit claims, we of their affirm convictions of all defendants and the sentences four Kerridan, Yet, Bafia, be- and LaPorta. hold that the district court cause we appro- regarding misread the law have priate continuing sentence for a conspiracy, and a remand enterprise resen- Cappas’ case to the district court for tencing.

I. greed This sad tale of and addiction be- 1985, the gan spring year in the of after Cappas graduated high school. John time, Cappas parents At with his lived Lawn, Illinois, in an honest Oak earned working liquor at his father’s store. income Bindi, Atty. (ar- Asst. David E. Gen. the evidence at trial showed that even But Atty., gued), Prosperi, Mark S. Asst. U.S. 1985, Cappas begun supplement had to Div., Atty., Office of the U.S. Criminal by selling his income cocaine. Over Chicago, 111.,for U.S. grew years, Cappas from a next three kingpin into a small-time distributor Steinback, W. Jeffrey B. Marc Martin organizer of a cocaine distribution network. Genson, (argued), Gillespie, & Steinback cocaine; fact, he had Cappas never used Chicago, 111., Philip LaPorta. opinion of did. rather low those who Cole, Chicago, (argued), N. Jeffrey Cappas had addiction: it was his another Cappas. for John cocaine ambition to increase his volume of Hall, Jerry (argued), Kathryn B. Kurz point to the where he would be able sales Kurz, Chicago, 111., Hall for Michael Ker- & distance himself from actual distri- ridan. cocaine, leaving his small bution distributors, Nagel, army Alan S. and concentrate sole- Charles K. Piet and Grod- (argued), ly acquisition Nagel, Chicago, ner & on the of cocaine and the Brian Bafia. collection debts. Illinois; par- port, left

In the fall of his two new Corvettes each cost- $29,000 apartment ing (and an ents’ home and moved into over equipped both Justice, This him Illinois. move allowed to stereos and totalling custom features over supply impres- $21,000); his of cocaine an store special a third edition Corvette armory apartment. in his $50,000; sive firearms costing over a Rolex Presidential significant move coincided with $11,600; wristwatch for a snowmobile and expansion operation. By his the end of $5300; costing trailer over girl- and for his 1986, Cappas having could numer- boast friend, a fur gold coat and $5000 $1900 selling ous distributors on the street spelling diamond necklace out the words quantities. product larger larger “Spoiled Brat.” Also in purchase would cocaine from vari- started a business called “Flash Sweats” suppliers. ous He then would dilute or sports apparel. $30,000 that sold For his Inositol, “cut” the narcotic with a white investment, Cappas received a share of 60% powdery compound. Cappas vitamin would the profit business which turned a of $6568 mixture to his dis- sell this cocaine-inositol in 1987. Cappas reported For a tax- credit; the distributors would tributors on $14,605. able income of The Internal Reve- consumers, thereby resell the narcotic nue Service calculated that un- enough money pay their debt to earning derreported $150,- his 1987 income over something pockets. in Cappas put their Bafia, Kerridan, joined and LaPorta Nevertheless, by the end of in Cappas organization as distributors Cappas organization begun had to crumble. Federal authorities had Cappas’ infiltrated Cappas his ex- maintained control over network; Special Agent Drug a of the En- panding through network of distributors Agency successfully posed forcement as a pagers, supplied expense. the use of at his purchaser Cappas’ cocaine to of one distrib- assigned Each of the network member was (We suspect utors. that it not difficult was a code number. When a distributor needed identify Cappas drug to as a dealer—for cocaine, page Cappas, he would who would instance, plate the license on his Corvette page assigned in turn whoever was spelled difficulty “Coke.” —and (As supply. orga- his “Custodian” his danger lay in the collection of admissible — grew, Cappas nization demonstrated an against Cappas evidence to be used and his handling aversion to the cocaine himself. distributors.) March On state By the end of stored his federal officers executed a search warrant supply of cocaine in at various lockboxes Cappas’ Lockport. in The officers house appointed locations and series of individu- a of the net- seized numerous records cocaine stash.) Cappas als “Custodians” of the later, work. One month house enterprise also controlled his with violence pursuant was seized to court order. or the threat of cocaine violence. The busi- Following several more months of inves- credit; surprising ness is fueled it is not distributors, tigation, Cappas in- and his a collection of cocaine debts was Bafia, Kerridan, LaPorta, cluding predictable recurring problem. Cap- that, arrested. Bafia admitted in 1986 and pas’ solution was to recruit various individ- drugs he sold five to ten ounces of help “persuade” drug him uals who would per Cappas, partici- for and that he week pay Cappas’ “per- debtors to their debts. pated using in extortionate means to collect suaders” were known to fire shots into a Cappas. Kerridan stated that he debts explicitly debtor’s home and threaten vio- began buying Cappas in cocaine from lence and death to to those who refused distributing ounces a and was soon five pay. twenty-five month to customers. He also Cappas’ lifestyle any If measure of was participating Cappas’ plot in admitted to success, entrepreneurial then is there drug murder a rival dealer. quite a no doubt that John was trial, During Cap- jury After a businessman. 1986 and was convicted $100,000 pas continuing in in purchased engaging a home for Lock- on one count of a (“CCE”), by Cappas enterprise in of A. Issues Raised violation criminal (1988); of con- one count U.S.C. § argues first that his conviction to distrib- other defendants spiring with the engaging in a CCE must be reversed distrib- intent to possess ute improperly court in- because cocaine, in violation of U.S.C. 846 ute § the elements jury structed distributing (1988); co- thirteen counts of offense, specifically, conspir- number of 841(a)(1) caine, of 21 U.S.C. in violation § required “in ators to constitute concert” using (1988); three counts of extortionate activity. Cappas maintains that credit, in means to collect extensions by refusing give erred (1988); 18 U.S.C. 894 three violation of § an instruction tendered would have carrying a in relation counts of firearm jury required Cappas super- find drug trafficking, in crimes of violence persons simultaneously five more vised 924(c)(1) (1988); violation of U.S.C. guilty engaging to be found in order using telephone to facili- count of one CCE. offense, trafficking violation tate a 843(b) (1988); and two 21 U.S.C. § give The refusal to an instruction underreporting his income on his counts of by the defendant is not if tendered error returns, tax violation of U.S.C. the instruction not a correct statement of 7206(1) (1988). Anderson, the law. and Kerridan each were convicted Bafia Cir.1986). prove To count, on one count CCE, govern engaged defendant in a using a firearm relation to crimes of (1) ment must the defendant show drug trafficking. Bafia violence and predicate by violating committed offense one also convicted on count of extortion. (2) specified drug laws one certain as pleaded guilty to the two LaPorta counts part continuing of a series of law charged: conspiracy with he which violations, (3) acting in committed while attempting collect an exten- count and (4) persons five concert with or more over credit extortionate means. sion of managerial whom defendant exercised (5) control, supervisory or which to a total of Cappas was sentenced 45 defendant obtained substantial income years imprisonment: on the CCE count and Sophie, resources. v. 900 or United States count, conspiracy concurrent terms of 1064, (7th Cir.1990). 1077 21 F.2d See also imprisonment, concur- 365 months to run U.S.C. 848. rently remaining the sentences on the with counts, counts; except the firearms on Cappas’ argument involves the third counts, firearms the three consecutive element, requirement. the “in concert” years for terms of five each count. Bafia government must that the terms of was sentenced 188 concurrent prove supervised he managed or at conspiracy months on the and extortion time, persons five same least at counts, year five and to consecutive term government rely thus the not on evi on firearm count. Kerridan was sen- persons in dence that five more or conspiracy to 235 months on the tenced during the volved at times course various count, year and to a consecutive five term enterprise. Cappas maintains that it on the firearm count. LaPorta was sen- supervised he is not sufficient show that tenced to a term 97 months on the time, people two or three at one and then count, year a five term of people or three four different another probation on the extortion count. All four time in order to sustain a CCE conviction. timely appeal. defendants filed notices of Cappas' argument support. is without

II. Every argu considered the circuit that has rejected Because defendants raise different ment has it. United States v. (10th appeal, 549, Jenkins, issues on we will consider each 553-54 904 F.2d Cir. 1990); Ricks, defendant in turn. v. 882 F.2d United States

1471 Ci1r.1989), denied, 885, (4th possibility underlings went, 493 came and 891 cert. 846, 1047, light manager 107 L.Ed.2d 841 in of the defendant’s U.S. 110 S.Ct. role as Fernandez, (1990); 822 larger orga- v. coordinator of a United States criminal (3rd Cir.), denied, 382, 484 F.2d 386 cert. nization. 450, 963, L.Ed.2d 391 U.S. 108 S.Ct. 98 Cappas also relies on v. United Jeffers (1987); Boldin, v. 818 F.2d United States 137, States, 14, 432 U.S. 147-49 and n. 97 771, (11th Cir.1987); 775-76 United States 2207, 14, S.Ct. 2214-15 and n. 53 L.Ed.2d 719, (8th Cir.1986); Lueth, 807 F.2d 731 (1977),and Jefferson, 168 United States v. Burt, 1364, 1366 765 F.2d United States 689, (7th Cir.1983), 714 705 appeal F.2d (9th Cir.1985); Young, United remand, (7th Cir.), following 760 821 F.2d 733, (2d Cir.1984), 745 F.2d cert. de remanded, vacated 474 U.S. nied, 470 U.S. S.Ct. (1985), remand, 88 L.Ed.2d 34 (1985); L.Ed.2d 142 v. Phil (7th Cir.1986). Among other (5th 1981), lips, Cir. cert. things, these two propo- cases for the stand denied, 457 U.S. that the “in requirement sition concert” (1982). home, in Closer to

L.Ed.2d proof requires agreement of an Bond, 847 F.2d 1233 persons among the continu- involved Cir.1988), this court declared that action enterprise. ing maintains simultaneously is persons concert five with requirement implies this that “the required: supervise must oth- CCE defendant the five speaks acting statute concert [t]he people simultaneously er least one at at persons; say it does not five point in time.” Brief at With- continuously____ ques- same five simultaneity, argues, there out this acted in tion is whether [the defendant] be- necessary cannot exist manager as coordina- concert with five the defendant and the five other tween question tor. this the tenure It is on persons supervises. whom of the staff is irrelevant. That office But, case again, misreads the orders to barked [the defendant] [one nothing There is law. Jeffer- underling] Monday un- Jeffers and [another simul- require could be read to son that Tuesday, tossing derling] on while bales Instead, us, taneity. informs marijuana brother on Wednes- Jeffers merely implies “in element an concert” day underlings that the of the or- —and design 432 agreement plan. Jeffers, in a ganization may today have been here It is suffi- at 97 S.Ct. at 2215. U.S. gone tomorrow—does not detract from defendant had prove cient to that the CCE the extent of coordinat- [the defendant’s] agreement each of the conspiratorial ing role. underlings. required It is not five Id. at 1237. other. We five act in concert with each meaning tries to twist of govern- previously summarized have argument. Bond, support Bond In proof 848: ment’s of on section burden is intended we noted that CCE statute not establish that government The need large organizations, and combat people managed five at the defendant apply was not intended to to a small-time once, in concert with that the five acted one in dealer who uses courier Janu- other, exercised that the defendant each on, ary, February, in until second and so of control each the same kind over Bond, part. five have taken couriers per- five, had that the defendant or even point 1237. seizes on this five. with each of the sonal contact government must argues 860 F.2d Moya-Gomez, supervision peo- prove simultaneous five (7th Cir.1988) (quoting United ple, replacements none whom (8th Possick, 332, 335-36 849 F.2d But States v. enterprise. have left the others who Cir.1988)). tendered reading The instruction not an position such a accurate supervision excerpted Cappas requiring simultaneous language As the dem- of Bond. onstrates, state the law dismissed a CCE defendant did not Bond as irrelevant imposition court, therefore, The did not disturb Court

correctly, and terms, prison however. consecutive it. properly refused statutory maximum term under CCE imposed district court Because the life; could charge is consecutive sentences for his convictions concurrent sentences that limit. not exceed two, conspir the CCE and counts one and argues that these charges, Cappas next acy pronouncements in the Court’s After Jef- sentences, though concur multiple even opinion As our in I. came Jefferson fers Jeopardy Clause of rent, the Double violate discussed, I held that we have Jefferson Cappas primarily the Fifth Amendment. Fifth Jeopardy the Double Clause where we opinion Jefferson, in relies on our precludes convictions on both Amendment stated: charges. and CCE conspiracy Because [conspiracy] is a lesser-included If § con court sentenced Jefferson to [CCE], the conviction offense § penalties conspir for the CCE and current lesser-in- imposed for the and sentence charges, we remanded the cause for acy vacated____ must be cluded offense resentencing opinion. consistent with our is a lesser-included hold that § [W]e remand, appeal following In the see United 846 con- Appellant’s offense of § Jefferson, Cir. will be vacated. viction and sentence 1985) IF’), the dis (“Jefferson we affirmed Undoubtedly, our 714 F.2d at imposition single sentence court’s of a trict is still If language here is clear. Jefferson conviction. That for the defendant’s CCE law, 846 conviction good then however, decision, by the Su was vacated and sentence must be overturned. preme Court and remanded. See Jefferson opinion has never been Although the States, 474 U.S. v. United simply does formally, overruled (1985). The basis for Jefferson 88 L.Ed.2d 34 any longer. To understand govern opinion recent remand was the Court’s confusing progression of rather States, Jefferson U.S. Garrett United F’) (hereinafter and its subse- (1985). “Jefferson There 85 L.Ed.2d 764 S.Ct. hope, to resolve quent history and, we — language, struc held that “the the Court (or until the Su- for all at least once and history ... show the legislative ture and otherwise) any confu- preme directs Court Congress intended ... plainest way that regarding multiple sentences under sion separate criminal charge] to be a CCE [the develop- and 848—we shall trace §§ 779, 105 at 2412. Id. at offense....” and CCE ment of the law Thus, Garrett’s sen the Court affirmed convictions. included concurrent sentences tence which Supreme story begins with the Our convictions. for CCE and in which the Jeffers, decision Court’s Garrett, Following concluded penalties declared that cumulative Court F.2d 697 Jefferson, 782 United by the prohibited and 846 are 848 §§ IIF’), (7th Cir.1986) (“Jefferson that 432 Jeopardy Clause. U.S. Double originally imposed the district sentence By punish- “cumulative 97 at 2220. prison terms for the de- court—concurrent however, ment,” refers to consecu- Jeffers conspiracy convic- and fendant’s CCE Jeffers, the defendant tive sentences—in permissible. We declared tions—was prison sentenced to terms and had been Garrett, originally the sentence counts, [U]nder conspiracy and CCE fines both fully comports imposed on Jefferson with consecutively. The the sentences to run Jeopardy requirements of the Double by making Supreme determined that Court original sen- It follows that the Clause. consecutive, total fine im- the fines aside. should never have been set tence statutory maximum for posed exceeded the Although we are not authorized vacate Thus, offense. the defendant either /], that that deci- we conclude so the CCE fine reduced entitled to have \Jefferson sion has been overruled Garrett the maximum that the total fine was within 154-58, longer has force and effect. at 2218-20. no limits. Id. at reasoning apply general to a CCE conviction the Apparently with this at 701. Id. (though to cite the neglected principle penalty may we that an increased in mind crime____ in held explicitly), continuing decisions we to a apply [But] Jefferson (7th Bond, v. 847 F.2d judge keep should in mind Cir.1988), that may that he not take conspiracy con- into illogical person viction account sentencing is not convict a when it [the 846) (§ agreeing something to do on the CCE judge

both count. The defendant] succeeding scale grand may impose on a a [separate,] pris- concurrent say is 848)____ can (§ The most that one for the on sentence conspiracy count. included conspiracy that the is a lesser (citations omitted). at 1238 Id. holding the CCE. That offense of —cou- case, court, In the instant the conclusion Garrett— pled with applying Sentencing the United States may conclusion that a court supports the (the “Guidelines”) imposed con- Guidelines for a con- impose concurrent sentences thirty years sentences of current the CCE spiracy and offense. Two, the conspir- One and Counts CCE 1238-39. Id. at Cappas, I, acy citing convictions. Jefferson Bond, clear that we have made Since argues multiple that convic- sentences for longer governing represents I no Jefferson conspiracy charges, tions of CCE and even in this circuit. See States law United ones, Jeopar- violate concurrent the Double (7th Cir. Moya-Gomez, F.2d dy exposition From our Clause. holding in 1988) (“[T]he effect of Bond law, Cappas’ it is clear that case hold previous the court’s was to overrule clings fact must fail. to the mere ing Jefferson____”); States formally I was over- that not Jefferson (7th Alvarez, n. 31 Cir. ruled, give neglects proper weight 1988) (“[Bond] apparently sub overruled history I, subsequent to the of Jefferson part of that re silentio 7] [Jefferson more in which to the host of recent cases quired the vacation the conviction both explicitly opin- we have declared the de sentence for when Thus, longer has force effect. ion no was also convicted of CCE fendant sentences for convic- concurrent left, then, offense.”). are We indeed tions of CCE following principle and its con from Jeffers permissible. Moya-Gomez, 860 F.2d See may fusing sentences progeny: concurrent at 754. imposed (conspiracy) under Nevertheless, particu- the district court’s held, (CCE), provided, as Jeffers requires application of Guidelines lar “cumula defendant does not receive record From the be- closer examination. By penalties for offenses. tive” these two us, district court appears it fore penalties, mean that the “cumulative” we sentencing recom- essentially adopted the impose punishment, double government’s presen- mendations of 31, or, Alvarez, 860 F.2d at 830-31 n. see (“PSI”). investigation report tence Bond, more “the exactly articulated we Proceeding, Cappas Transcript of Sentenc- may not maximum exceed the punishment Trans.”), ing (“Cappas at 20-27. PSI act.” F.2d at the CCE under against Cap- log aggregated the various counts explained most our Perhaps clearly Pace, pas into four different divisions: the ic United Cir.1990): category, categories, two extortion counts category. filing of false tax return same, and the conspiracy, the while not CCE and challenges Cappas imposed the sentence punish agree- crimes. Both are similar drug He the dis- the counts. claims that (such running to commit crimes ments impermissibly lumped the con- CCE, trict court enterprise); conspir- unlike Cappas’ sen- spiracy sentence CCE agreement’s suc- punishes also the acy, words, the district CCE, on- tence—in other important, like an cess. Most continuing stepped permits over the line that conspiracy, court going involves Thus, conspiracy not to sentences for there no reason concurrent conduct. is in the Cappas’ not allow double level enhancement for “role does convictions but CCE declared, “[Tjhere The is offense.” court punishment. by four based on the fact an increase levels the agree. Given nature We Cappas organizer the that Mr. surprising law, not that the dis it is case Cappas of criminal activities.” leader Trans, may have been uncertain about trict court 23. added at Two more levels were exactly impose sentence on both how justice, resulting in the of for obstruction Never conspiracy convictions. CCE offense Because adjusted of 40. level theless, the court we convinced no aggravating circumstances there from to consider the exhortations neglected Cappas’ past crimi- arising from record of Bond, Alvarez, and Pace—cases Jeffers, convictions, Cappas assigned the court nal that, al proposition that stand the Category I. History of See the Criminal though are indeed concurrent sentences Trans, at This calculus—the case, and, highly appro permissible this Adjusted of 40 and the Crim- Offense Level conspiracy a lesser-included priate, is still Cappas in History Category I—placed inal thus, and, Cappas should CCE offense to sentencing range of 292 to the Guideline conspiracy bigger take a hit for imprisonment. The district months for the CCE. than imposed sentences of court then concurrent conspiracy months for the CCE court Given convictions. convic conspiracy and CCE grouped the applied then category into one tions aggregat the district court not Had Guidelines, Cappas’ it seems that the clear convictions, the ed the CCE and the CCE sen conspiracy sentence affected may have re application of the Guidelines In Al in clear of Alvarez. tence violation focus in a different If we sulted sentence. varez, and con we vacated concurrent CCE solely charge, Cappas’ base CCE existed there spiracy sentences because would 32.1 a base offense level Such possibility that “the distinct Category I dic History level Criminal defen have considered sentencing range of [the tates guilt on the conviction in If we add two level increase months. dant’s] sentencing him on conviction.” justice, raising Cappas’ the CCE for obstruction case, sentencing range at 830-31. In the instant 860 F.2d offense level cry the same er the district court committed to 188 a far becomes 151 months—still actually imposed for ror. from the 365 months charge. that under the CCE We note Cappas’ sentence determined The court Guidelines, district court 2D1.5 of the starting of- with the Guidelines’ base enhancing prohibited expressly quantity on the fense level based adjusted offense level for CCE drugs “proved at this trial in the course of offense,” sub “role because continuing conspiracy and criminal this this of the CCE offense embraces stance Trans, at 13. See enterprise____” supervised a the defendant notion Trans, (“So, offense at 20 base also large-scale operation. level, quantity on that based on based 34.”). counts, government dispute that start at does not compilation longer a four received a sentence than figure, court added far To this base PSI, Although portion for CCE Record Document 372 at 5. 1. The relevant of the Guidelines provided This section has general convictions is Section 2D1.5. de- rule statute is that the past significantly three amended in the been years, guidelines fendant is to be under the sentenced again then once in October "in effect on the tenced,” defendant is sen- date the Guidelines, C, Appendix November 3553(a)(4) (1988), U.S.C. in this C.35, Neverthe- C.82. amendments less, guidelines, application case the the amended conviction, not concern us these amendments need at least for the CCE would have utilized to the version Guidelines because Cappas receiving higher resulted in base of- compute Cappas’ levels were those in offense Scott, fense level. See effect at the time of his infractions. 959, (7th Cir.1990). n. 4 Objections Response Cappas’ to Government’s to by tions, the in permitted keeping pun- the mind Guidelines that concurrent that this response offense. Its sole is conspiracy pro- CCE ishment for CCE and is not permitted the by is Bond because punishment increase long so as that hibited does not Cappas for the CCE and sentence received exceed that which is authorized for the conspiracy convictions less than the was greater CCE offense. statutory imprisonment. maximum of life Cappas’ remaining appeal de- Yet, neglects government’s argument a the Twenty- serve far less attention. Count a non-Guide- key distinction. Bond was that, alleged Nine October permissi- in lines case which maximum Cappas a during, carried firearm and in under a was ble sentence CCE conviction to, offense, drug trafficking relation a imprisonment. surprising It life is not namely, conspiracy pos- to distribute and maxima. spoke only statutory Bond cocaine, sess with intent to distribute suggest did not in a Guidelines Bond 924(c)(1). violation of 18 U.S.C. He ar- § case, given penalty permissibility of a gues that the evidence was insufficient to by it whether for CCE is to be determined support guilty verdict on that count This case is imprisonment. life exceeds only Cappas because it showed had the which, by the Guidelines governed him gun with when to make a he went Court declared Mistretta United sources, payment one of his to and did not 361, 647,

States, 488 U.S. gun that he used the “in show relation to” (1989), sys- “mandatory” are a L.Ed.2d trafficking also offense. judges courts in the tem that “bind[s] claims that the district court’s instruction responsibility exercise of their uncontested twenty-nine inadequate on count to pass sentence criminal cases.” Id. to jury necessary of the inform the evidence 652-53, 368-69, 391, 652, 367, 109 S.Ct. at satisfy requirement. the “in to relation to” stated, As “While the Justice Scalia has Neither claim merit. Sentencing products of the Commission given the name ‘Guide- have been modest challenging sufficiency In of the lines,’ they have force and effect verdict, supports evidence that laws, prescribing the criminal de- sentences heavy burden. The will carries a evidence judge A dis- fendants are to receive. who light in the most favorable to the be viewed regards them will be Id. at reversed.” and the must government, conviction (dissenting opinion). 109 S.Ct. at 676 any rational fact could affirmed if trier of By imposing concurrent 365-month sen- found the essential elements of the have conspiracy, tences for CCE beyond crime reasonable doubt. See impermissibly Cappas’ considered Virginia, 443 U.S. Jackson sentencing him conspiracy conviction when (1979). 61 L.Ed.2d 560 Cap- simply, conviction. Put CCE Muehlbauer, 892 See also United for CCE ex- pas’ sentences (7th Cir.1990). F.2d ceed the allowable limit established law. Viewing light, in this it evidence (We where narcot- note that the amount of satisfy his cannot bur is clear pre- in the exceeds a ics involved CCE required support All that is den. level, 2D1.5(a)(3) of the Guide- scribed 924(c)(1) the de under is that conviction life imprisonment. lines mandates had possessed shown have fendant be drugs in the amount involved during of a firearm the commission control and, thus, approach did not that level CCE crime, underlying and that “the cir imprisonment appropriate life not the the case fire cumstances of show that the permis- yardstick which measure the crime, or had sentence.) Therefore, arm facilitated a role Cappas’ sibility of emboldening an such as actor had who sentence and remand we vacate display discharge the opportunity to resen- cause to the district court for remand, protect intimidate weapon others____” himself or tencing. On we know that Vasquez, give court will careful consideration (7th Cir.1990) (quoting convic- to both CCE and 538, is Stewart, adequate instruction to inform the 779 F.2d This United States relationship must Cir.1985)), denied, jury that it find a be- 484 U.S. (9th cert. gun underlying drug the and the (1987). tween 192, 867, 98 L.Ed.2d 144 Malin, 908 offense. United States v. F.2d 924(c)(1) not Although does (7th 163, Cir.1990). instruction An ex- fortuitously who apply to the defendant the “in plaining relation to” element entirely he an gun commits has a when it, if the for given defendant asks but it crime, the apply it does when unrelated required. 167-68. “The is not Id. at reasonably conclude that fact could trier of itself; any ‘in relation for phrase speaks to’ protect drugs gun had the the defendant explanation superfluous.” further Id. possession, or money in his whether case, Cappas In the neither instant of dan an immediate likelihood there was given, objected to the instruction as nor (“It ger. at 240 was Vasquez, F.2d See explanatory an instruction further tendered logical judge for trial to con certainly the describing “in the relation to” element under the circumstances Vas clude that greater detail. We hold that district quez weaponry for had an evident need proper. instruction court’s was readily in the event that was available dispose Cap- of summarily We govern competitor group covetous remaining argues pas’ claims. his agents appropriate arrived to ment continuing applying the Guidelines to of hoard.”). La also United States v. See that straddle effective date fenses vio (8th Cir.1985) Guardia, 317, 774 F.2d I, the Ex Post of Article lates Facto Clause utility pro in the (weapon had “undoubted argument has been Sections That supply the valuable and of the tection of court, every this other cir rejected hand”). cash question. has cuit that decided the See Fazio, F.2d 958- reasonably jury We hold (7th Cir.1990) (collecting n. 14 59 and pis nine-millimeter could conclude cases). Cappas also claims that district bag gym in his tol that carried by enhancing erred his offense level suppliers pay of his when he went one refusing of justice, for obstruction drug “in to” traf indeed was used relation acceptance his offense adjust level for that, on ficking. The evidence established responsibility. responses: We offer two Cappas brought gym October first, Cappas has waived these gun, him into his bag, containing the probation failing object to the either $10,000in apartment he where counted out to the officer’s recommendation or district apartment, Cappas left cash. When finding sentencing hearing at the court’s again gun with him as he and one took Pritchett, (see 898 F.2d United States v. suppli meet the his distributors drove to (11th second, Cir.1990)); there This kind er in order to deliver the cash. ample support evidence to Cappas’ ap demonstrates both behavior findings, which reviewed court’s under preciation ways that dan unforeseen “clearly erroneous” standard. See ger dealer and can confront Brown, United States gun handy at all times to to have a desire (7th Cir.1990). We note that the ad cash or protect himself and his hoard of justment acceptance responsibility evidence, then, is sufficient to drugs. apply when there also has been cannot an support the verdict. adjustment justice, obstruction un in As far as district court’s are extraordinary less there circumstances. concerned, simply that struction is we note 3E1.1, Application Guideline Note 4. See statutory given instruction tracked the Reynolds, See also United States v. required (7th Cir.1990). language jury to find No such John carried a firearm Finally, “defendant case. circumstances exist this not, during relation to the offense do we note Guidelines Transcript argues, process. in Count II.” of Pro charged violate due (“Trial Trans.”) Pinto, ceeding at Trial at 3731. 875 F.2d 143 made numerous took on credit. Bafia remaining offered Rosa Cir.1989). claims Any debt. These attempts to collect on Rosa’s without merit. Cappas simply are by spring lasted until the collection efforts by Bafia Raised B. Issues considering Cap- noted when 1988. As we claims, court, every this in accord with pas’ (1) appeal: on four claims Bafia makes issue, has circuit that has decided other acts in furtherance committed no that he conspiracy began prior held that where (the 1, 1987 November conspiracy after of the Guidelines but the effective date thus, Guidelines), and, of the effective date it, apply. beyond the Guidelines continued sentencing under subject to not was Fazio, n. 14. 914 F.2d at 958-59 and See us- Guidelines; (2) for that his convictions collect debts and means to ing extortionate Moreover, equally well-set it is committing a crime using weapon in conspiracy is liable a member of a tled that Jeopardy the Double of violence violate co-conspirators commit acts of his for the due Clause; (3) deprived of that he was conspiracy. ted in furtherance of the See was based his sentence process because Andrus, 775 F.2d proven that were not of cocaine quantities case, Cir.1985). (7th In the instant Count erred trial; (4) the district court that began in alleged that the Two enhancing offense level for obstruc- by his 1988. did not end until Even 1985 and claims leads None of these justice. tion of no acts in assuming that Bafia committed district court. us to reverse the conspiracy after of the Novem furtherance member of the he was still a ber con- there were two argues that Bafia for the acts of conspiracy in 1988 and liable was Cappas conspiracy that spiracies: the is, that unless he with co-conspirators, his indictment, an un- charged the ef conspiracy prior to drew from the involving charged conspiracy transactions of the Guidelines. Absent fective date buyer named and a cocaine Bafia between withdrawal, appropri the Guidelines such a only that the Edgar Rosa. Bafia contends Bafia. ately applied to were charged that occurred which he is act with of the Guidelines the effective date after concerned Yet, from the he withdrew that uncharged conspiracy with argument. Bafia’s alternative conspiracy is Thus, com- argues, the acts Rosa. Bafia points: the evidence on two He relies involve the by mitted him that did change in experienced a he and charged in Count conspiracy which were of Bafia’s relationship a result their occurred before Three of the indictment in the sum Cappas’ Corvette demolition Bafia effect. into Guidelines went any evidence and the lack mer of alternative, urges Bafia Brief at 18. In the Bafia af cocaine to Cappas delivered from us to hold that he withdrew however, not, all crash. It is ter the car (i.e. in the sum- charged Cappas) conspiracy. easy to withdraw Cap- one of mer of he wrecked 1987 after act requires an affirmative Withdrawal result, had “a and, pas’ corvettes as a purposes of defeat or disavow either falling Cappas. out” with making a full con conspiracy, such as communicating authorities fession to the There was We persuaded. are not that one has abandoned co-conspirators Cappas was ample evidence to show Patel, 879 enterprise. United cred the source cocaine advanced Cir.1989). Merely ceas 292, 294 Thus, efforts it to Rosa Bafia. Bafia’s conspiracy, even in the ing participation Rosa, money from contin to collect which enough. Even is not Id. periods, extended into 1988 the Guidelines became ued after in 1988 efforts assuming Bafia’s collection effective, conspir part of charged and that uncharged conspiracy served an be acy. The evidence showed that Rosa the car selling after stopped cocaine he Bafia in gan buying from the summer actions these in the summer of in crash purchase place Rosa’s last took with to constitute still not sufficient purchase one involved October by Bafia’s persuaded $1500, We are cocaine, price drawal. at a which ounce of Heights, relationship Bafia arrested Palos police shortly after Illinois officers car as a result of the had deteriorated so “persuaders” shot at other conspir- his involvement crash that through of one of home windows to end. The evidence acy come an had conspiracy’s ultimately Bafia debtors. the Cor- that Bafia wrecked showed before guilty charge in state to a pleaded court close, vette, very but he and damage partic- to His property. crash, longer they were no that after the in ipation incident formed the basis of Trans, 2830-31, good "on terms.” Trial at in this Counts Eleven his conviction case on any simply 3348. There is no evidence of Twelve, charged extortion and which com- by affirmative act Bafia would in to crimes of the use of a firearm relation anyone else that municate to drug trafficking. It is this violence goals conspiracy. of the had renounced the prosecution in his conviction double —first that, argues even if he com- also Bafia damage property to court for criminal state conspir- acts in furtherance mitted and then his conviction in the district court 1987, acy the Guidelines after November Counts Eleven Twelve—that Bafia the bulk apply still should not because rights Fifth violate his under the contends occurred the effective his conduct before Amendment. Davis, date. He relies United States argues Bafia that the recent decision 8, (S.D.N.Y.1989), F.Supp. 718 10 in which 508, Corbin, 495 Grady U.S. 110 S.Ct. apply the court refused to (1990), 109 L.Ed.2d 548 heralds the majority the vast Guidelines because doctrine, sovereignty of the dual demise prior to No- defendant’s conduct occurred though Grady successive even involved 1987. The rationale for Davis vember no- prosecutions by the same state and us, by nor its result. eludes are we bound sovereignty. dual In where mentions Gra- sharp In contrast to Davis stands our deci- caused an automobile dy, defendant sion in Fazio which we considered—and person one was killed and accident which rejected statutory and constitutional injured. The defendant was another —both arguments against applying the Guidelines misdemeanors, driving un- ticketed for two to a straddles the effective failing to der influence alcohol Fazio, Ba- date. F.2d at 914 958-59. He keep right pleaded the median. meager justification why charges fia this guilty subsequently offers to these felony charges, in- reasoning in indicted on several court should revisit its Fazio. was cluding criminally negligent homicide. Thus, appro- we hold that the district court Jeopardy Court held that Double priately applied the Guidelines in sentenc- if, subsequent prosecution Clause bars ing Bafia on conviction. of an establish an essential element offense prosecution, the argument urges charged govern- Bafia’s us in that second prove ment must conduct that constitutes for extortion and reverse convictions already an offense for which the defendant try Bafia firearm violations. prosecuted. 110 has been Id. S.Ct. at ing these him both offenses violates Jeopardy prohibition Double Clause’s sovereignty argues Bafia that the dual against multiple prosecutions for the same doctrine should be re-examined because Again, persuaded. are not offense. applied Grady can suc- rationale of impli argument the full Bafia’s overlooks prosecutions just cessive state and federal sovereignty cations of the dual doctrine prosecutions by as well to successive prosecution by us that both which instructs sovereignty. Brief 26- same See Bafia at state federal for the same sovereignty authorities disagree. 27. We The dual either the Double does violate conduct doctrine has been fixture of constitution- decades, Jeopardy the Due Process Clause al law for see United States, Lanza, 359 U.S. 67 L.Ed. Clause. Abbate v. United 260 U.S. 666, 669-71, 193-96, (1922), by L.Ed.2d 314 and was once described Jus- S.Ct. (1959). plain tice as “too to need more Holmes perjury fia committed when he v. United testified than statement.” Westfall (supporting trial a two level increase States, 274 U.S. (1927). The defendant’s offense level for obstruction of concerns that L.Ed. sovereignty justice). Both of these determinations doctrine are the dual underlie -fact, support findings Grady. those different from clearly which must unless be affirmed erro- Multiple prosecutions same sover- Ross, neous. inherently same offense are See United States v. eign Cir.1990); Brown, only they subject because unjust, not F.2d at 1103. anxiety uncertainty, defendant but they oppor- allow the an also because state findings by Both the district court tunity presentation proof, to rehearse its of supported amply by are the record. The increasing an the risk of erroneous convic- essentially district court arrived at the at Grady, tion. 110 S.Ct. 2091-92. 5,386.5gram figure multiplying the by low weekly est estimate the amount of co sovereignty, The dual how- doctrine of receiving (five caine Bafia to admitted ever, govern- recognizes that the federal per week) by ounces the number weeks states their ment each of the derive and Bafia acted sources, Cappas. as a distributor that the power from different and Transcript Proceedings for See Bafia the interests of may same conduct affect Sentencing at 21-23. Bafia’s admission Alabama, 474 sovereign. each Heath by several other was corroborated distribu 437-439, 82, 88-91, U.S. by large money tors and the amounts of (1985). explained As the L.Ed.2d 387 Court Surely Cappas. Bafia owed it was not Heath, transgress- the same act “[W]hen clearly to find that Bafia re erroneous sovereigns, ‘it cannot be es laws of two slightly ceived over five kilos cocaine. truly the offender has been averred that offence; punished for the same but twice strongly Similarly, sup the record he has only by that one act committed two finding that ports the district court’s Bafia offences, justly of which for each he is justice, thus deserved obstructed punished.’” at 437 Id. at adjusted level in his offense two increase Illinois, (quoting How. Moore v. untruthfully rep at trial Testifying level. (1852)). dispute There is no L.Ed. 306 the basis resents conduct that that Illinois and the federal the State of the two level increase. See Guideline government sovereign- different represent trial, 3C1.1, At Application Note 1. Bafia 89, 106 (“[T]he S.Ct. at 437 ties. id. at See that, things, he among other never testified uniformly held that Court has the States or cocaine. Given verdict received sold sovereigns respect with to the separate jury, only court could of the the district because each State’s Federal Government Thus, it was not clear find that Bafia lied. own power prosecute is derived from its he find that obstructed ly erroneous to sovereignty, not the federal inherent warranting the two justice, thereby level omitted)). government.” That (quotations increase. government may Illinois and the federal essentially Bafia for prosecute convict by Issues Kerridan LaPor- C. Raised no affront Fifth the same conduct is to the ta

Amendment. essentially Kerridan and LaPorta each issues, persuade argu- raise four none of which remaining Bafia’s

We can dismiss reverse convictions sentences. easily. Bafia that the us to their ments rather support- findings challenges Kerridan the evidence district court made two erroneous conspiracy count during ing the verdict on the regarding conspiracy count findings by the made district possessed Bafia two of fact sentencing hearing: sentencing 5,386.5 court at the defendant’s hear- grams of with intent to distribute argues that conspiracy ing. Specifically, Kerridan the course cocaine over conspira- narrower sentencing there were a series of (determining the defendant’s one, Guidelines); all-encompassing Ba- cies rather than the range and that under sentencing amend- by jury, and the Kerridan claims that the conspiracy found applied. ment should have been enhancing by court erred his of- offense,” fense level for his “role see is argument The flaw Kerridan’s 3Bl.l(b), finding Guideline is provision effective of 235 date possessed the intent to distribute expressly II Act. Chapter limited it say grams 5806.65 of cocaine. Suffice is relevant amendment contained challenges overcome the that these cannot In Chapter explicit X. absence an given jury to the substantial deference provision, date an act effective becomes findings. court on factual signed on the date it law. effective is into Paiz, Cirrincione, F.Supp. (7th Cir.1990) first (“[T]he jury gets crack (N.D.Ill.), aff'd, F.2d 620 deciding at whether there is one Cir.1985). Eighth The Fifth and Cir several____ review,] question pro [On cuits have held that the effective date simply for us is whether the evidence Act apply vision of the does not to the support jury’s determina- 924(c), sufficient to amendment omitted)); Brown, 900 (quotations signed tion.” amendment became effective when (“A sentencing court’s deter- the President on October 1984. See 893, 905 concerning Holloway, a role in v. F.2d mination defendant’s United States (5th Cir.1990); York, finding fact, subject 895 States to a United the offense is a 885, Cir.1987). (8th 830 892 Because F.2d clearly standard of review on erroneous plot the murder occurred well after that Boss, appeal.”); States v. United date, 924(c) properly the amendment to 1050, (7th Cir.1990) quantity (“[T]he § 1054 applied to His was Kerridan’s conduct. of a substance involved in a co- controlled is sentence on Count 28 affirmed. sentencing is a determina- caine transaction sentencing by tion to be made the similarly LaPorta offers meritless judge____ our standard of review [T]hus claims, already have re most of which we error.”). strong the is one of clear Given significant argu solved. LaPorta’s most supporting jury’s the record the evidence in ment the should not have is that Guidelines determinations, and the district court’s we been used to calculate his sentence because no find error. from prior the to withdrew 1987, 1, effective November the Guidelines’ argues also his sentence Kerridan that from a date. We note that withdrawal using during on Count 28 for a firearm fact, question conspiracy is a which was drug to crimes of violence and relation (LaPorta by plead found court 924(c), trafficking, see U.S.C. violates § and, therefore, is not guilty), ed reversible Clause, Ex the Post Facto because the stat- clearly it is erroneous. unless utory provides that for the im- amendment Wilkens, 769, (7th F.2d posed sentence did take effect until 1102, Cir.), denied, cert. 454 U.S. charged place. after the conduct had taken (1981). Also, we 70 L.Ed.2d when plot Based on his involvement in a to mur- if the review the evidence to determine rivals, der one district court erred, district court must view to sentenced Kerridan a consecutive five- light to the record in the most favorable year prison term authorized current government. Mealy, 924(c). version of Prior to the amend- Cir.1988). (7th F.2d Chapter Compre- X ment included (the Act of 1984 As we resolved Ba- hensive Crime Control we discussed when “Act”), 1005(a), claims, 98-473, easy fia’s to from 98 Stat. it is not withdraw Pub.L. conspiracy. supra was term of 1477. “To penalty a consecutive year conspir- imprisonment of not than one nor establish that he withdrew less provides acy, prove he un- more ten. the defendant must that than Because § steps, that the ostensible effective date for the dertook inconsistent with affirmative conspiracy, objects Act was November and because disavow place conspiratorial objectives, plot the murder took October defeat the D, E, in man- acts manufacture the and F to either communicated those suppose during distribute it. And reasonably reach his co- that calculated to ner manufacturing phase D and E were on illegal scheme conspirators disclosed the layoff, kingpin supervising so that the to law enforcement authorities.” United only persons, four during while distribution Finestone, layoff, B were again A and on that so Cir.1987). Although claimed LaPorta kingpin was supervising only persons. four informing Cap- withdrawal he achieved four-man, six-man, still be a It would not a longer participate, pas that he no wished operation, kingpin statute would to disbelieve was entitled apply. the testi- testimony rely instead and fed- mony purchaser of another cocaine good, go but my colleagues So far so agents described undercover who eral say underlings it is “irrelevant that demonstrating Kerridan’s involve- events went,” came that it is “sufficient Cappas conspiracy beyond ment in the well [kingpin] conspiratorial had a Simply alleged the date of withdrawal. agreement with each of the under- five district court that Kerridan put, the found lings” in the setting of this case these —and proving not meet his burden of with- did misleading. statements are That under- in that deter- We can see no error drawal. lings go come and is if there are irrelevant remaining of LaPor- mination. slots, assump- more than five and on similarly are mer- ta and Kerridan without underlings among tion the relation it. But if question also irrelevant. is how are,

many there crucial slots it becomes III. underlings merely replace- whether ments for the second fiddle in the two-man reasons, foregoing we affirm For the they band or whether fill out a table Bafia, Kerridan, Cappas, convictions informal, that, organization has at however LaPorta, court. as entered spaces on it. least five Kerridan, Likewise, Bafia, the sentences of only way principle The also are affirmed. Based on the reconcile LaPorta above, however, replacements get you up to that mere can’t grounds annunciated principle simultaneous remand the five and vacate sentence and is to re-sentencing supervision required of all five is not to the district court for case orga- criminal opinion. insist that the defendant’s consistent with this positions, five or wheth- nization have more POSNER, concurring they’re any particular all filled at Judge, Circuit er or not positions The focus on is consist- dissenting. moment. with, required by, indeed I think ent being drug kingpin, To be convicted a kingpin statute court’s observation that Cappas had found to have defendant to be orga- large intended to combat “is any persons. five or Not supervised more large A not a nizations.” two-man band is though. persons, The court notes five organization many no matter times the how kingpin “apply statute not to a does replaced. player is A six-man band second drug dealer uses one couri- small-time who large organization is a within the sense January, February, a and so second in er if players even the statute not all six on, part.” five couriers have taken until through I if playing at once. assume that operation, not a That would be two-man play all wizardry players can electronic two Bond, 847 one. six-man six- at not a six instruments it’s still once (7th Cir.1988). The five the stat- piece meaning band within the occupied at underling slots needn't all be here. ute but that is not an issue time, however, Cappas is so the same instructed argue kingpin jury must su- wrong to asked that the persons underlings Sup- deciding once. “in or not pervise all five whether drug ring you may not consid- kingpin presided acting in concert pose the over A, B, merely replaced oth- employed underlings persons and C to who er those authority for Bond ers.” He cited judge The refused

this instruction. refusal like it. This give anything it or since, (correctly) error, especially Cappas need jury that

instructing the once, persons five or all at supervised

have re- jury away from the judge led refusal only Not was the

placement issue. an jury replacements

to instruct Bond; prejudicial light of it was

error in king- government’s The case on

error. sug- charge

pin was weak. evidence more

gested that there not have been Cappas’s organization—

than four slots so,

and if it’s irrelevant that because people occu- total number of

turnover the four.

pying these slots exceeded majority

I agree with rest of Cappas’s con-

opinion I would reverse but remand kingpin offense and

viction of the new trial. directions MUSIC, INC., et

BROADCAST

al., Plaintiffs-Appellants, INC., BOUTIQUES,

CLAIRE’S d/b/a Boutiques,

Claire’s and d/b/a

Arcadia, Defendant-Appellee.

No. 91-1232. Appeals,

United States Court of

Seventh Circuit.

Argued Sept. 4, 1991. Dec.

Decided

Case Details

Case Name: United States v. Brian Bafia, Michael Kerridan, John Cappas and Philip Laporta

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Jan 29, 1992

Citation: 949 F.2d 1465

Docket Number: 89-2167, 89-2168, 89-2322, 89-2414 and 89-2561

Court Abbreviation: 7th Cir.