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
 

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

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
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

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.
4

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
5

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
 

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

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
7

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. 
 

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

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
9

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
 

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

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 
 

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

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.
12

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
 

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

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,
 

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

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
15

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
 

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

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,
 

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

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).
18

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
19

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). 
20

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.
21

AFFIRMED.