United States Court of Appeals, District of Columbia Circuit
February 16, 2018
from the United States District Court for the District of
Columbia (No. 1:15-cr-00147-3)
Jonathan Zucker, appointed by the court, argued the cause and
filed the briefs for the appellant.
E. Timm, Trial Attorney, United States Department of Justice,
argued the cause for the appellee. Vincent J. Falvo, Jr.,
Trial Attorney, was with her on brief.
Before: Henderson and Tatel, Circuit Judges, and Williams,
Senior Circuit Judge.
LeCraft Henderson, Circuit Judge
Cooper (not that one) was convicted of five counts for his
role in a scheme to steal from a labor union. Counts One and
Two both charged conspiracy under 18 U.S.C. § 371. Count
One alleged a conspiracy to embezzle money from the union.
Count Two alleged a conspiracy to pay off the union official
who embezzled the money. At sentencing, the district court
enhanced Cooper's offense level for Count Two-the count
that dictated his overall offense level-under section
2E5.1(b)(1) of the United States Sentencing Guidelines
(U.S.S.G. or Guidelines). Section 2E5.1(b)(1) applies "[i]f
the defendant was a fiduciary of" the victim union. The
court sentenced Cooper to 68 months in prison on Count Two.
It also sentenced him to 68 months on each of the other
counts, with all terms to run concurrently.
appeals, advancing three claims. First, he argues that the
two alleged conspiracies were in fact one. As a result, he
contends, his conviction on either Count One or Count Two
must be vacated as multiplicitous. Second, he urges us to
vacate all of his sentences because, in his view, they rest
on an erroneous application of section 2E5.1(b)(1). Third,
Cooper points out that a prison term for conspiracy cannot
exceed section 371's five-year maximum-a restriction he
says the district court violated in imposing a 68-month
sentence on each conspiracy count. Finding merit in
Cooper's claims, we vacate his sentences and remand for
resentencing. On remand, the district court's first step
will be to decide, in its discretion, which one of the
multiplicitous convictions should be vacated. See Ball v.
United States, 470 U.S. 856, 864-65 (1985).
convictions and sentences followed one year of pretrial
litigation, an eight-day jury trial and a thorough sentencing
process. We recite only the background necessary to resolve
Cooper's claims of multiplicity and sentencing errors.
the same offense in more than one count"- "a
problem known as multiplicity"-is "a defect in
the indictment." United States v. Weathers, 186
F.3d 948, 951, 953 (D.C. Cir. 1999) (internal quotations
omitted); see United States v. Harris, 959 F.2d 246,
250-51 (D.C. Cir. 1992) (per curiam), abrogated on other
grounds as recognized by United States v. Stewart, 246
F.3d 728, 730-32 (D.C. Cir. 2001); see also Fed. R.
Crim. P. 12(b)(3)(B)(ii). We therefore begin with the
indictment against Cooper and his codefendants. It alleged as
Laborers International Union of North America, Local 657
(Union) is a labor union in Washington, D.C. It represents
construction workers. Under the Union's constitution and
bylaws, each Union officer is a fiduciary who can spend the
Union's money only for the Union's benefit.
Frederick was a Union officer and thus a fiduciary.
Christopher Kwegan and Gary Cooper owned STS General
Contracting, Inc. (STS), a Maryland construction company.
Kwegan and Cooper were signatories to STS's bank account,
which they opened in May 2013.
One. According to Count One, Frederick, Kwegan and
Cooper-"together and with others known and unknown to
the grand jury"-violated 18 U.S.C. § 371 by
agreeing to commit an offense under 29 U.S.C. §
Joint Appendix (JA) 28. From about April 2013 through about
June 2014, the defendants conspired to embezzle Union money,
secretly causing the Union to pay STS some $1.7 million
"for uses other than for the benefit of [the Union] and
its members." JA 28-29. Specifically, the defendants
caused the Union to pay STS about $1.1 million for less than
$100, 000 of renovations to the Union's hall. And they
caused the Union to pay STS nearly $600, 000 in
"exorbitant fee[s]" "to expedite building
permits" for the Union's training center. JA 29.
Frederick made the payments in installments. Kwegan and
Cooper deposited the proceeds into STS's bank account.
Two. According to Count Two, Frederick, Kwegan and
Cooper-"and other persons both known and unknown to the
[g]rand [j]ury"-violated 18 U.S.C. § 371 by
agreeing to commit an offense under 29 U.S.C. §
JA 34. From about April 2013 through about June 2014, the
defendants conspired to make unlawful payments in cash and in
kind to Frederick. The payments included a $225, 000 down
payment on a house for Frederick and his wife; construction
of a three-car garage at the house; and $8, 000 via
cashier's check. The money came from the same STS bank
account into which Kwegan and Cooper had deposited the
embezzled Union funds.
counts. Cooper was also charged in Counts Three,
Fourteen and Twenty-One. Count Three charged Frederick,
Kwegan and Cooper with defrauding the Union "by means of
wire communications"-in the process depriving the Union
of property and Frederick's honest services-in violation
of 18 U.S.C. §§ 2, 1343 and 1346. JA 43. The
gravamen of the fraud scheme, according to Count Three, was
that Kwegan and Cooper secretly paid Frederick "bribes
and kickbacks . . . in return for favorable action" on
their overpriced renovations and bogus fees, thereby
"caus[ing] the expenditure of more than $1.70
million" of Union money. JA 40. Counts Fourteen and
Twenty-One charged Cooper with laundering the proceeds of the
scheme in violation of 18 U.S.C. § 1957.
Motion To Dismiss And Trial
pleaded not guilty. Before trial, he moved to dismiss Counts
One and Two as multiplicitous. Alternatively, he argued that
the government should be required to elect only one
conspiracy count on which to proceed. The district court
"defer[red] ruling . . . until after [the]
verdict." JA 74; see JA 70-71 ("[I]t's
perfectly acceptable to deal with that issue after trial, if
there are convictions, and that's what I'll
and Kwegan pleaded guilty. Kwegan testified at Cooper's
trial. He explained some of the mechanics of the scheme and
the ways in which he, Frederick and Cooper tried to conceal
it. He admitted that STS funded the down payment on
Frederick's house using embezzled Union money. Indeed,
Kwegan characterized the down payment as a
"kickback" to Frederick. Supplemental Appendix (SA)
118. He also noted that Frederick bought the house from
Dennis Laskin, an acquaintance of Kwegan. According to
Kwegan, Laskin actively helped the defendants hide the fact
that they used embezzled Union money to finance
jury found Cooper guilty on all five counts. After trial,
Cooper did not remind the district court of his pending
motion to dismiss the conspiracy counts as multiplicitous nor
did the court rule on the motion.
sentencing in Frederick's and Kwegan's cases, the
district court issued a "Notice" "conclud[ing]
that the guideline applicable to Count II-§
2E5.1-produce[d] the highest offense level" for any
count of conviction and thus "govern[ed]" the
overall offense level for both Frederick and Kwegan. JA
116-17. Adopting that analysis, the probation office in
Cooper's case prepared a presentence report (PSR) that
used "the guideline applicable to Count Two, "
section 2E5.1, to calculate Cooper's governing offense
level. PSR ¶ 46. The PSR calculated a base offense level
of 10 and assessed 17 levels of enhancements not here in
dispute. The PSR also recommended a two-level enhancement
under "USSG §§ 2E5.1(b)(1) and 2X2.1"
because Cooper "is considered an aider and abettor to
Mr. Frederick, who was a fiduciary of the labor
organization." PSR ¶ 50. Based on Cooper's
criminal record, the PSR calculated a criminal history
category of II. Taking that calculation together with
Cooper's offense level of 29, the PSR computed an
advisory Guidelines range of 97 to 121 months in prison.
sentencing memorandum and at the sentencing hearing, Cooper
did not dispute that Count Two, and therefore section 2E5.1,
yielded the highest offense level for any count of conviction
and controlled his overall Guidelines range. But he objected
to the two-level enhancement under section 2E5.1(b)(1), which
applies if "the defendant" was a fiduciary of the
victim union. Cooper pointed out that he, the defendant, was
not a Union fiduciary. The government responded that Cooper
aided and abetted Frederick, "the principal, " who
"very clearly [had] a fiduciary duty" to the Union.
JA 126. The government argued that the enhancement applied
because, under the aiding and abetting statute, Cooper was
punishable as a principal. Id. (citing 18 U.S.C.
district court overruled Cooper's objection. Relying on
its earlier Notice, the court concluded that section 2E5.1
governed Cooper's overall offense level. JA 120. Agreeing
with the PSR, the court ...