### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

Nos. 12

‐ 3896 & 13

‐ 1034

U NITED S TATES OF A MERICA

, Plaintiff

‐ Appellee

,

v.

C ONSTANTINO C EJAS and N ICHOLAS C EJA

, Defendants

‐ Appellants

.

____________________

Appeals from the United States District Court for the

Southern District of Indiana, Terre Haute Division.

No. 11 CR 0037 01/02

— Jane E. Magnus

‐ Stinson

, Judge

.

____________________

A RGUED N OVEMBER 5, 2013

— D ECIDED A UGUST 1, 2014

____________________

Before B AUER

, W ILLIAMS

, and S YKES

, Circuit Judges

.

W ILLIAMS

, Circuit Judge

. Brothers Constantino and Nicho

‐

las Cejas’ 1 Valentine’s Day drug dealing activities attracted

1 The brothers’ last names were spelled differently in the lower court and

in their briefing before this court, specifically as “Constantino Cejas” and

”Nicholas Ceja.” But counsel explained in oral argument that the differ

‐

ence in the spelling was the result of an administrative error and that the

correct spelling is “Cejas.” We therefore use that spelling for both broth

‐

ers throughout this opinion.2 Nos. 12

‐ 3896 & 13

‐ 1034

the attention of law enforcement officials. As a result, they

were each convicted of conspiring to distribute drugs, pos

‐ sessing and distributing 50 grams or more of methamphet

‐

amine, and possessing a firearm to further their drug activity

that day. Constantino was also convicted on charges related

to his drug activities on February 8, 2011. The brothers ap

‐ peal their convictions.

They argue that the video showing them at Brian Denny’s

home was inadmissible because the government did not

properly authenticate it, but the evidence supports the find

‐ ing that the video was an accurate depiction of the events

that unfolded on February 14 and intermittent skips in the

footage did not render the entire video inadmissible. Nicho

‐

las urges us to find that the video also should have been ex

‐

cluded because it unfairly prejudiced him, but nothing about

the video would cause a reasonable jury to decide the case

on an improper basis and the inferences the jury drew from

it were reasonable. Nicholas’s remaining arguments also fail

because his actions on February 14 provided sufficient evi

‐

dence to support his convictions. Constantino claims it was

error to count his gun possession on February 14 as a second

conviction under 18 U.S.C. § 924(c) because he continually

possessed the gun from February 8, the date of the illicit ac

‐

tivities underlying his first conviction, through February 14.

But we have held that two predicate drug offenses involving

distinct conduct can support two convictions under § 924(c).

The jury convicted Constantino of two drug trafficking of

‐

fenses, and found that he carried a gun during each. So as

harsh as a mandatory twenty

‐ five year sentence for a second

conviction may be, it does not violate double jeopardy, and

the conviction stands.Nos. 12

‐ 3896 & 13

‐ 1034 3

We affirm the brothers’ convictions and Constantino’s

sentence.

I. BACKGROUND

Brothers Constantino and Nicholas Cejas were indicted

on charges related to drug activity that occurred on February

8, 2011 and February 14, 2011. Their illicit activities came to

the attention of law enforcement officials in early 2011 dur

‐ ing the Federal Bureau of Investigation’s (“FBI”) surveillance

of the methamphetamine trafficking activities of Brian Den

‐

ny and his neighbor Gregory Miller in Terre Haute, Indiana.

FBI agents monitored and recorded the activities that oc

‐

curred outside of Denny’s and Miller’s homes through the

use of a pole camera mounted on a nearby utility pole,

which allowed the agents to view and control the video feed

from a remote location. Much like a convenience store sur

‐

veillance camera, the pole camera captured a live feed, but

the recording skipped every few seconds and did not pro

‐

duce a fluid, continuous video.

On February 8, 2011, FBI Special Agent Ed Wheele and

other agents monitored the live video feed. The camera rec

‐

orded Constantino, a security guard, and his son as they ar

‐

rived at Denny’s residence in Constantino’s company car.

The video showed the pair enter Denny’s residence and exit

the home a short time later. Denny’s cooperation with the

FBI later revealed that Constantino sold him methampheta

‐

mine while inside his home that day. Once the deal was

done, undercover agents followed Constantino’s car to a

nearby restaurant and saw him carrying a handgun and a

small shield on his hip. In an effort not to compromise the

surveillance operation, the special agents did not arrest Con

‐

stantino that day.4 Nos. 12

‐ 3896 & 13

‐ 1034

The pole camera showed Constantino arrive at Denny’s

residence once again on February 14, 2011. This time, his

brother Nicholas was with him, driving Nicholas’s pick

‐ up

truck with Constantino in the passenger seat and Constanti

‐

no’s son in the backseat. The pole camera recording showed

the brothers leave the truck and Nicholas walk over to the

toolbox attached to the bed of the truck and place his hand

on the toolbox lid. The video records the toolbox lid open

and then shut, with Nicholas standing beside it. But, as

Nicholas points out, the feed does not show him take any

‐ thing out of the box. The brothers then entered Denny’s

home. Denny later testified that, once inside, either Nicholas

or Constantino placed four ounces of methamphetamine in

his microwave and received $8,000 from him. After leaving

the home and coming back within the pole camera’s view,

the brothers walked to the truck and both went to the truck’s

toolbox before driving away. Agent Wheele witnessed this

activity via the live feed and ordered the on

‐ site surveillance

team to follow Nicholas’s truck. When the law enforcement

officers stopped them, Constantino showed the officers his

security badge and admitted to possessing a firearm. The

officers seized a loaded firearm from his waistband and

found a second handgun and $8,000 cash in the toolbox.

Constantino and Nicholas were indicted for conspiring to

supply Denny and other individuals in Indiana with over

500 grams of methamphetamine. In connection with their

activities on February 14, 2011, they were charged with pos

‐

session and distribution of 50 grams or more of metham

‐ phetamine, in violation of 21 U.S.C. § 841(a)(1), and posses

‐

sion of a firearm in furtherance of a drug trafficking crime,

in violation of 18 U.S.C. § 924(c)(1)(A). Constantino was also

hit with identical charges for his actions on February 8, 2011,Nos. 12

‐ 3896 & 13

‐ 1034 5

as well as possession of a firearm by an alien illegally or un

‐ lawfully present within the United States, in violation of 18

U.S.C. § 922(g)(5). Constantino pled guilty on this last count,

and the brothers went to trial on the remaining charges.

At trial, Denny testified against the brothers. He admit

‐

ted purchasing methamphetamine from Constantino, known

to him as “Tino,” on five occasions in 2011 and testified that

Nicholas accompanied Constantino to Denny’s residence “at

least once, possibly twice.” According to Denny, he did not

know which brother actually provided the drugs on the oc

‐

casion when they came to his house together because they

placed the drugs in his microwave out of his sight. Agent

Wheele testified regarding his observations while monitor

‐ ing the pole camera and confirmed that the recording that

the government wanted to admit into evidence was an accu

‐

rate depiction of what he saw from his remote location. The

one

‐ hour video recording from February 8 was admitted

without objection. Nicholas objected to the admission of the

February 14 video for lack of foundation and completeness,

but his objection was overruled and the thirty

‐ five minute

video was admitted and the relevant clips shown to the jury.

The jury found the brothers guilty of all five counts.

Nicholas was sentenced to 180 months’ imprisonment, while

Constantino received a sentence of 480 months’ imprison

‐

ment. Constantino was sentenced to 120 months’ imprison

‐

ment for the two distribution convictions, to run concurrent

‐ ly with his 120

‐ month sentence for conspiracy and consecu

‐ tively to his sixty

‐ month sentence for possessing a gun dur

‐ ing the drug deal on February 8. But the majority of his sen

‐

tence came from the 300 months imposed pursuant to 18

U.S.C. § 924(c)(1)(C), which requires the imposition of a6 Nos. 12

‐ 3896 & 13

‐ 1034

twenty

‐ five year sentence, to run consecutively to any other

sentence, for a defendant’s second conviction for possession

of a firearm in furtherance of a drug trafficking crime. The

brothers timely appealed their convictions, which we have

consolidated for our review.

II. ANALYSIS

The brothers both argue that the February 14 video was

inadmissible because it was not properly authenticated.

Nicholas lodges a second attack against the video, claiming

it was unfairly prejudicial and that, without it, there was in

‐

sufficient evidence to convict him. Constantino takes issue

with his sentence, arguing that this second conviction for

possessing a firearm in furtherance of a drug trafficking of

‐

fense violated the Fifth Amendment’s Double Jeopardy

Clause, contravenes congressional intent, or the rule of lenity

requires reversal.

A. Video Was Properly Authenticated

We begin with Constantino and Nicholas’s joint argu

‐

ment that the video showing them outside of Denny’s resi

‐

dence on February 14, 2011 should not have been admitted

at trial because the government did not establish a proper

foundation to authenticate it. Our review of evidentiary rul

‐ ings is for abuse of discretion, and we will reverse only if

“no reasonable person could take the view adopted by the

trial court.” United States v. Vargas

, 552 F.3d 550, 554 (7th Cir.

2008).

In laying the foundation for admitting the video, the

government established through Agent Wheele’s testimony

that the pole camera produced accurate results throughout

the investigation and the video offered in court was a fairNos. 12

‐ 3896 & 13

‐ 1034 7

and accurate depiction of what he saw through the pole

camera. After defense counsel objected, and the government

elicited more details about the accuracy of the video and

Agent Wheele’s knowledge of the events shown in it, the

judge overruled counsel’s authentication objection and ad

‐

mitted the video into evidence. The brothers cannot show

that the court abused its discretion in doing so.

A party seeking to admit an item into evidence—whether

a document, weapon, photograph, audio or video recording,

or other item—must first establish the item’s genuineness.

Fed. R. Evid. 901. This requires the proponent to “produce

evidence sufficient to support a finding that the item is what

the proponent claims it is.” Id. Of course it must also be rele

‐

vant to an issue at trial. Fed. R. Evid. 401, 402. There is no

question that the February 14 video was pertinent to the

government’s efforts to prove the brothers’ guilt. The only

question before us is whether the government satisfied Rule

901’s authentication requirement.

The admitting party’s burden of making a prima facie

showing that the item is genuine can be satisfied in several

ways, including through the testimony of a witness with

knowledge or evidence showing that a process or system

produces accurate results. Fed. R. Evid. 901 ; see United States

v. Fluker

, 698 F.3d 988, 999 (7th Cir. 2012). For video record

‐ ings, like tape recordings, the proponent should also show

that the camera functioned properly, the operator was com

‐

petent in operating the equipment, and the recording fairly

and accurately represented the scene depicted. Cf. United

States v. Eberhart

, 467 F.3d 659, 667 (7th Cir. 2006) (finding,

for audio tapes, that the government must show by clear and8 Nos. 12

‐ 3896 & 13

‐ 1034

convincing evidence that the recording is true, accurate, and

authentic).

The brothers’ argument that the video was not properly

authenticated fails first because trial testimony from wit

‐

nesses with knowledge supported the finding that the video

was what the government claimed it was—a video showing

the events that occurred outside of Denny’s home on Febru

‐

ary 14. The evidence establishes that the video showed Den

‐ ny’s residence. Denny confirmed that Government Exhibit 3

was a picture of his house, and Agent Wheele’s testimony

established that the house in that photograph was the same

as the one shown in the video. These witnesses had personal

knowledge that the house was Denny’s house. Denny’s tes

‐ timony also provided sufficient evidence for a reasonable

jury to conclude that a drug buy went down with the broth

‐

ers at his house on that day. He verified that he and “Tino”

exchanged texts on February 14 discussing where to meet for

that day’s drug buy, and settled on meeting at his home.

Agent Wheele then testified that he watched the events un

‐

fold as they were captured on the pole camera on February

14, which showed the brothers arrive at Denny’s home in

Nicholas’s pick

‐ up truck. After he saw the brothers pull out

of the driveway, Agent Wheele ordered law enforcement of

‐

ficials to conduct a traffic stop and officers pulled them over

as they were heading eastbound from Terre Haute (where

Denny lives) to Indianapolis (where the brothers lived). The

video had shown both brothers access the toolbox after exit

‐ ing Denny’s home, and the officers found a gun and $8,000

cash in the toolbox after they pulled them over. This evi

‐

dence corroborates the events the video recorded and sup

‐

ports a finding that it was a true and accurate representation

of what happened outside Denny’s home on February 14. SeeNos. 12

‐ 3896 & 13

‐ 1034 9

Eberhart

, 467 F.3d at 667; cf. United States v. Carrasco

, 887 F.2d

794, 802 (7th Cir. 1989) (foundation is properly laid for a tape

recording when there is corroborating eyewitness testimo

‐ ny).

The brothers attempt to attack the reliability and accura

‐

cy of the pole camera recording, but their argument is un

‐ supported by the record. Agent Wheele confirmed that the

pole camera was monitored throughout the investigation

and was consistently producing accurate results. See Eber

‐

hart

, 467 F.3d at 667. Additionally, the video noted the pre

‐

cise date and time of the recordings, which were consistent

with the activities that Denny testified occurred on those

dates. Cf. Griffin v. Bell

, 694 F.3d 817, 826–27 (7th Cir. 2012)

(affirming exclusion where video did not have date or time

stamp). Trial testimony that Agent Wheele worked with

many pole cameras during his tenure as a special agent also

made it clear that he was qualified to competently monitor

the camera, as well as testify regarding its general use and

accuracy. See United States v. Rembert

, 863 F.2d 1023, 1026

(D.C. 1988) (finding authenticity can be established by testi

‐

mony regarding camera use, quality, and reliability). This

evidence, along with Agent Wheele’s testimony that the vid

‐

eo recording presented in court was a fair and accurate rep

‐

resentation of the recording of events he observed on Febru

‐

ary 14, was sufficient for Rule 901’s purposes. See Fluker

, 698

F.3d at 999 (“Only a prima facie showing of genuineness is

required; the task of deciding the evidence’s true authentici

‐

ty and probative value is left to the jury.”).

The brothers give us no sound reason to doubt the vid

‐

eo’s authenticity. They do not argue, for example, that the

scenes depicted in the video did not occur outside of Den

‐10 Nos. 12

‐ 3896 & 13

‐ 1034

ny’s home, or that they were not the individuals seen in the

video. They fail to give us any reason to believe the video

was spliced, or improperly altered in any way, or that the

pole camera did not accurately record the events as they un

‐

folded. See Bell

, 694 F.3d at 826–27 (affirming decision not to

admit video where proponent could not say what type of

device was used or whether video was altered); Carrasco

, 887

F.2d at 802 (tape admissible where there is evidence it was

not altered improperly while in custody). They simply argue

that Agent Wheele was not the proper person to establish

the genuineness of the video because he watched a live feed

of the video and did not personally witness the events the

recording captured. We reject this argument. As long as the

government provided a convincing reason to believe that the

video was a fair and accurate depiction of the events that un

‐

folded on February 14, Rule 901 was satisfied. See Fluker

, 698

F.3d at 999 (authenticating email on circumstantial evidence

alone where no witness saw the email’s author draft the

email); Eberhart, 467 F.3d at 667; Rembert

, 863 F.2d at 1027

(“Even if direct testimony as to foundation matters is absent

... the contents of [an item] itself, together with such other

circumstantial or indirect evidence as bears upon the issue,

may serve to explain and authenticate [the item] sufficiently

to justify its admission into evidence.” (quoting United States

v. Stearns

, 550 F.2d 1167, 1171 (9th Cir. 1977))). Witnesses’

testimony established that the house in the video was Den

‐ ny’s house, and explained how the camera worked, that it

produced accurate results, and that the clips in court were

consistent with what the live feed showed as the events un

‐

folded. Therefore, the court did not abuse its discretion in

admitting it. See United States v. Westmoreland

, 312 F.3d 302,

310–11 (7th Cir. 2002) (tape recording properly authenticatedNos. 12

‐ 3896 & 13

‐ 1034 11

where testifying agent listened to the conversation via head

‐ phones at the time the conversation took place).

The brothers also argue that the recording’s tendency to

intermittently skip a few seconds at a time makes the record

‐ ing unreliable. This argument also fails. “[R]ecordings that

are partially unintelligible are admissible unless the unintel

‐ ligible portions are so substantial as to render the entire re

‐ cording untrustworthy.” United States v. Larkins

, 83 F.3d 162,

167 (7th Cir. 1996) (dealing with tape recordings). The video

in this case skipped a few seconds at a time, totalling about

thirty seconds over the course of the entire thirty

‐ five minute

video. The few seconds missing periodically between

stretches of properly recorded video footage did not render

the video unintelligible, unreliable, or irrelevant. Id. at 168

(holding that unintelligible parts did not make tapes inad

‐

missible, but went to their weight as evidence). Since the

skipping of the video did not prevent the jury from under

‐ standing the course of events in this case, the missing sec

‐

onds did not require exclusion of the entire video.

Because the video was relevant to establish defendants’

presence at the site of a drug deal, trial testimony established

a prima facie showing that the video was genuine, and the

skipping nature of the video did not make it incomprehensi

‐

ble, the court did not abuse its discretion in admitting the

video.

B. Video Not Barred by Rule 403

Nicholas finally challenges the video’s admission by ar

‐ guing that it unfairly prejudiced him and should have been

excluded under Federal Rule of Evidence 403. This argument

is without merit because the video’s probative value was not12 Nos. 12

‐ 3896 & 13

‐ 1034

substantially outweighed by the danger of unfair prejudice

or confusing the jury. See Fed. R. Evid. 403.

The pole camera video was relevant to the issue of Nich

‐

olas’s involvement in the February 14 drug transaction as it

showed Nicholas drive up to Denny’s residence around the

date and time of the drug deal. It shows Nicholas leave the

truck and walk over to the toolbox attached to it. It shows

the toolbox lid open, while Nicholas stands beside it, and

then closed with his hand on top of it. The video then shows

Nicholas walking towards Denny’s home and exiting a few

minutes later. Lastly, the video shows both Nicholas and

Constantino accessing the toolbox before Nicholas drives

away. When FBI agents pulled the brothers over a few

minutes later, they found $8,000 and a firearm inside Nicho

‐

las’s toolbox. The video was highly probative to showing

that Nicholas was part of the February 14 drug deal.

But even highly probative evidence is subject to exclu

‐

sion if it is significantly more prejudicial to the defendant.

“Evidence is unfairly prejudicial if it induces the jury to de

‐

cide the case on an improper basis rather than on the evi

‐

dence presented.” United States v. Conner, 583 F.3d 1011, 1025

(7th Cir. 2009). Nicholas again hangs his hat on the fact that

the video “was missing more than 30 seconds of accumula

‐

tive footage.” He highlights that the video did not provide

any visual evidence that he removed anything from the

toolbox or carried anything in his hands as he entered Den

‐ ny’s house. Defense counsel was free to make those argu

‐

ments in his closing argument, but the jury was equally free

to draw reasonable inferences from the video and other ad

‐

mitted evidence. See United States v. Keskes

, 703 F.3d 1078,

1088 (7th Cir. 2013) (“[T]he jury can draw reasonable infer

‐Nos. 12

‐ 3896 & 13

‐ 1034 13

ences and use their common sense in assessing the evi

‐ dence.”). It was reasonable to infer from a video showing

Nicholas open and close the toolbox that he pulled some

‐ thing out of it. The firearm found in the toolbox soon after

Nicholas again accessed it supports the inference that the

“something” he pulled out was actually a gun. Common

sense would counsel him not to carry the gun or drugs in

plain view, so we decline to draw much from the fact that he

carried nothing in his hands. There is nothing about the vid

‐

eo that would lead the jury to base its decision on anything

other than the evidence presented.

Moreover, the video was not likely to confuse or mislead

the jury. Nicholas argues that the video misled the jury into

believing that his “mere presence” implicated him in the

crimes of conspiracy and possession of a firearm. But the ev

‐

idence suggested that Nicholas was more than just present at

the scene. In addition to driving to Denny’s residence, he

was in the house when the drug deal occurred and appeared

to access the toolbox where, immediately afterwards, a large

amount of money and a gun were found. A reasonable juror

could conclude that Nicholas actively participated in the

drug deal on February 14. The video was properly admitted

because it was probative of Nicholas’s guilt, and the proba

‐

tive value was not substantially outweighed by the danger

of unfair prejudice or misleading the jury.

C. Sufficient Evidence to Convict Nicholas

Nicholas’s final argument is that there was insufficient

evidence to support his convictions for conspiracy, posses

‐

sion and distribution of methamphetamine, and possession

of a firearm in furtherance of a drug trafficking crime. Faced

with this type of challenge, we review to “determine wheth

‐14 Nos. 12

‐ 3896 & 13

‐ 1034

er any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt when the

evidence is viewed in the light most favorable to the gov

‐

ernment.” Larkins

, 83 F.3d at 165. We will reverse only if “the

record is devoid of evidence from which a jury could find

guilt.” United States v. Hach

, 162 F.3d 937, 942 (7th Cir. 1998).

This standard is as difficult as it sounds, and presents a

“nearly insurmountable hurdle” for defendants. United

States v. Morris

, 576 F.3d 661, 665–66 (7th Cir. 2009).

Nicholas’s challenge does not clear the hurdle. In order

to establish that Nicholas conspired with Constantino to

possess and distribute drugs, the government had to prove

beyond a reasonable doubt that Nicholas knowingly and in

‐ tentionally agreed to join Constantino’s criminal enterprise.

See United States v. Johnson

, 592 F.3d 749, 754 (7th Cir. 2010).

Direct evidence of an agreement is not required; rather, the

charge may be proven through circumstantial evidence re

‐ garding the relationship of the parties, their overt acts, and

their overall conduct. Id. at 754–55. Moreover, while mere

association with an individual involved in a criminal enter

‐ prise is not sufficient, “presence or a single act will suffice if

circumstances show that the act was intended to advance the

ends of the conspiracy.” United States v. Crowder

, 36 F.3d 691,

695 (7th Cir. 1994).

The evidence at trial was sufficient to support Nicholas’s

conspiracy conviction. First, he drove from Indianapolis to

Terre Haute for a quick encounter at Denny’s residence. Sec

‐

ond, witnesses testified that most people drove straight into

Denny’s driveway, but Nicholas chose to back his truck into

the driveway. A reasonable jury could interpret this move as

indicative of his intent to hide the toolbox from passersbyNos. 12

‐ 3896 & 13

‐ 1034 15

and put the car in a position to facilitate a quick getaway if

things went awry. The evidence that Nicholas went to the

toolbox, entered Denny’s residence where drugs were sold,

and again approached the toolbox upon exiting—the same

toolbox where a large amount of cash and a firearm were

found soon thereafter—is sufficient evidence for a reasona

‐

ble jury to determine that he was guilty of joining Constan

‐

tino’s criminal enterprise. See United States v. Green

, 258 F.3d

683, 695 (7th Cir. 2001) (noting that courts of appeals do not

re

‐ weigh the evidence presented to the jury and will reverse

only if the evidence, “regardless of how it is weighed,” is in

‐

sufficient to support the conviction).

Nicholas’s conviction for possession of a firearm in fur

‐

therance of a drug crime also rests on solid ground. 18 U.S.C.

§ 924(c)(1)(A) provides that “any person who, during and in

relation to any crime of violence or drug trafficking crime

...

uses or carries a firearm, or who, in furtherance of any such

crime, possesses a firearm” shall be subject to mandatory

penalties. For this offense, “possession can be either actual or

constructive.” Morris

, 576 F.3d at 666.

The evidence supports a finding that Nicholas actually

possessed the gun found in the truck’s toolbox. As previous

‐ ly mentioned, the video showed Nicholas standing by the

toolbox when it was opened and closed both before and after

the drug deal, and a gun was found inside the toolbox when

the brothers were stopped a few minutes after leaving Den

‐ ny’s home. His brother Constantino already had one gun on

his waistband, so it is hard to understand why he would

need another and plausible for the jury to believe, based on

this evidence, that it was Nicholas who carried that second

gun into Denny’s house.16 Nos. 12

‐ 3896 & 13

‐ 1034

But even if Nicholas did not take physical possession of

the gun, he at least had constructive possession of it. “Con

‐

structive possession is a legal fiction whereby a person is

deemed to possess contraband even when he does not actu

‐ ally have immediate, physical control of the object.” United

States v. Griffin

, 684 F.3d 691, 695 (7th Cir. 2012)

. To establish

constructive possession, the government must demonstrate

either that a defendant had exclusive control over or a sub

‐

stantial connection to the property where the contraband

was found sufficient to allow the inference that the defend

‐

ant exercised dominion and control over objects found on

the property. Id. ; Morris

, 576 F.3d at 666–68 (collecting cases).

Nicholas owned and controlled not only the truck, which

read “Nick’s Landscaping” on the side, but also the toolbox

attached to it. His ownership indicated his control, along

with the fact that he accessed the toolbox immediately before

and after the drug deal. That Constantino had access to it as

well does not change our analysis because Nicholas had

substantial control over it. See United States v. Kitchen

, 57 F.3d

516, 521 (7th Cir. 1995) (“Constructive possession may be ei

‐

ther sole or joint.”); cf. United States v. Herrera

, 757 F.2d 144

(7th Cir. 1985) (no substantial connection where there was no

evidence defendant exercised control over a locked footlock

‐

er in a house he had just exited). And the gun, found in the

toolbox, was also within his control. See United States v.

Newman

, ‐‐‐ F.3d

‐‐‐ , 2014 WL 2736091, at *1 (7th Cir. 2014)

(“[C]onstructive possession means the authority to exercise

control.”); United States v. Caldwell

, 423 F.3d 754 (7th Cir.

2005). This constructive possession of the gun in the toolbox,

combined with the fact that the gun was found atop what

could reasonably be interpreted as drug profits ($8,000 in

cash) right after the drug deal went down, is sufficient to es

‐Nos. 12

‐ 3896 & 13

‐ 1034 17

tablish that he possessed the gun in furtherance of the drug

crime. United States v. Seymour

, 519 F.3d 700, 715 (7th Cir.

2008) (listing “proximity to drugs or drug profits” and “the

time and circumstances under which the gun is found” as

factors to consider in determining whether gun was pos

‐

sessed in furtherance of drug crime).

Nicholas’s objections to his conviction for possession

with intent to distribute and distribution of methampheta

‐

mine fare no better. Similar to the firearm possession charge,

actual or constructive possession of narcotics is sufficient to

support a conviction under 21 U.S.C. § 841(a). United States v.

Garrett

, 903 F.2d 1105, 1112 (7th Cir. 1990); see also Morris

, 576

F.3d at 666. Here, there is no definitive evidence that Nicho

‐

las was the one who physically possessed the drugs sold to

Denny on February 14. But whether Nicholas touched or

controlled the drugs is not dispositive since “any person

who knowingly aids

... the commission of an offense may be

found guilty of that offense if he knowingly participated in

the criminal activity and tried to make it succeed.” Seventh

Circuit Pattern Jury Instruction 5.06 (2012 Ed.); see 18 U.S.C.

§ 2(a) (“ Whoever commits an offense against the United

States or aids, abets, counsels, commands, induces or pro

‐

cures its commission, is punishable as a principal.”); Nye &

Nissen v. United States

, 336 U.S. 613, 619 (1949). In other

words, he who aids and abets another in committing a crim

‐

inal offense is guilty of that offense just as if he had commit

‐

ted it himself. See Rosemond v. United States

, 134 S. Ct. 1240,

1245 (2014) (“§ 2 reflects a centuries

‐ old view of culpability:

that a person may be responsible for a crime he has not per

‐ sonally carried out if he helps another to complete its com

‐

mission.”). “And an indictment need not charge the [aiding

and abetting offense] separately.” Newman

, 2014 WL18 Nos. 12

‐ 3896 & 13

‐ 1034

2736091, at *2. The government argued at trial that Nicholas

was guilty of Count IV because he aided and abetted its

commission and the court instructed the jury on this theory

of liability after trial.

Culpability for the substantive offense of possessing and

distributing narcotics attaches when the defendant affirma

‐ tively acts to further the offense with the intent of facilitating

the commission of the offense. See Rosemond

, 134 S. Ct. at

1245

. Precedent sets a low bar for satisfying the “affirmative

act” requirement, which is met when the defendant actively

and knowingly participates in carrying out any part of the

felonious conduct, irrespective of how minimal. Id. at 1245–

46 (discussing history in detail and recognizing that “every

little bit helps” if it aids crime as a whole). The defendant

does not have to participate in every element of the offense.

Id. ; United States v. Woods

, 148 F.3d 843, 850 (7th Cir. 1998).

Nicholas drove to Denny’s home, backed his truck into his

driveway, and entered Denny’s home with Constantino and,

according to the jury’s reasonable determination, a gun.

These actions solidly satisfy the affirmative act requirement

for aiding and abetting the drug offense.

But this does not throw open the doors of liability as

wide as one might imagine, for satisfying the affirmative act

element is not enough on its own to support a conviction.

Instead, the government must also show that the defendant

acted with the intent to facilitate the crime. Rosemond

, 134 S.

Ct. at 1248–1250. Unlike the affirmative act prong of aiding

and abetting liability, “the intent must go to the specific and

entire crime charged.” Id. at 1248. That element is satisfied

“when a person actively participates in a criminal venture

with full knowledge of the circumstances constituting theNos. 12

‐ 3896 & 13

‐ 1034 19

charged offense.” Id. at 1248–49. The evidence indicating that

Nicholas backed his truck into Denny’s driveway and car

‐

ried a firearm into Denny’s home suggests that Nicholas was

aware of the plan to distribute drugs at Denny’s home.

Nicholas, having denied carrying a gun—an assertion the

jury reasonably rejected—has offered no alternative reason

for entering the house strapped, and we can discern none.

And there can be no distribution without possession, so if

Nicholas knew about the plan to distribute the drugs, he

necessarily must have known who possessed the drugs,

whether himself or Constantino.

The gun evidence suggests that Nicholas was aware of

the plan to distribute drugs to Denny and acted to make the

plan succeed. There was therefore sufficient evidence to

convict him for possession with the intent to distribute and

distribution of the methamphetamine that Denny received

when the brothers came to his house on February 14.

D. No Error in Constantino’s Second Conviction for

Gun Possession or Resulting Sentence

We now turn to Constantino’s final challenge. He was

convicted on two drug trafficking charges for his involve

‐

ment in the drug deals on February 8 and February 14 and

two counts of possessing a gun in furtherance of a drug of

‐

fense, one for each drug deal. Constantino was sentenced to

five years’ imprisonment for the first firearm conviction and

twenty

‐ five years’ imprisonment for the second, each to run

consecutive to his sentence for the drug trafficking charges,20 Nos. 12

‐ 3896 & 13

‐ 1034

pursuant to 18 U.S.C. § 924(c)(1). 2 Constantino argues that

the second firearm possession conviction violates double

jeopardy and Congressional intent or that lenity requires re

‐

versal.

Even though he possessed a gun during each drug deal,

Constantino asserts he only violated § 924(c)(1) once because

his possession of the gun was continuous and uninterrupted,

and convicting him on two separate counts violated the

Double Jeopardy Clause. Because Constantino did not raise

this double jeopardy argument before the district court, our

review is for plain error and Constantino must show that the

district court not only erred, but also that the error was

plain, affected his substantial rights, and seriously called in

‐

to question the fairness, integrity or public reputation of his

trial. United States v. Warren

, 593 F.3d 540, 544 (7th Cir. 2010).

He cannot make this showing.

The Fifth Amendment’s Double Jeopardy Clause pro

‐

vides that “[no] person [shall] be subject for the same offence

to be twice put in jeopardy of life or limb.” U.S. Const.

Amdt. V. Because of its protections, criminal defendants

may not be exposed to a second prosecution for the same of

‐

fense after conviction. Nor may they be hit with “multiple

punishments for the same offense imposed in a single pro

‐

2 18 U.S.C. § 924(c)(1)(A) reads:

[A]ny person who, during and in relation to any crime

of violence or drug trafficking crime

..., uses or carries a

firearm, or who, in furtherance of any such crime, pos

‐

sesses a firearm, shall, in addition to the punishment

provided for such crime of violence or drug trafficking

crime

... be sentenced to a term of imprisonment of not

less than 5 years

... .Nos. 12

‐ 3896 & 13

‐ 1034 21

ceeding.” Jones v. Thomas

, 491 U.S. 376, 381 (1989). The clause

therefore prohibits the executive branch from doubling

down, bringing multiple prosecutions or seeking successive

punishments against a defendant for the same criminal of

‐ fense

. United States v. Dixon

, 509 U.S. 688, 696 (1993); McCloud

v. Deppisch

, 409 F.3d 869, 873 (7th Cir. 2005).

Constantino’s argument fails because the punishment

that resulted from his two § 924(c) convictions was not based

on the same criminal conduct. Rather, he was convicted for

possessing a gun during his drug activity on February 8 and

separately for possessing a gun during his criminal conduct

on February 14. He argues that he only violated § 924(c) once

because he says his possession of the gun was continuous

and uninterrupted throughout those seven days. He cites

several cases interpreting 18 U.S.C. § 922(g) for the proposi

‐

tion that, where the same gun is involved, the defendant

must relinquish and then reacquire actual and constructive

possession of the gun to be charged twice with unlawful

possession of the gun. See, e.g., United States v. Ellis

, 622 F.3d

784, 794 (7th Cir. 2010). Constantino contends that because

he possessed the gun as part of his security job, and never

relinquished and reacquired possession of it, he could only

be charged once without running afoul of the Double Jeop

‐ ardy Clause.

But to compare § 922(g) and § 924(c)(1) is to confuse ap

‐ ples with oranges. The former, for its part, makes it a crime

for enumerated groups of people to possess any firearm,

such as felons, fugitives, and aliens unlawfully present in the

United States. See 18 U.S.C. § 922(g). Our holdings that mul

‐ tiple § 922(g) firearm possession convictions and sentences

violate double jeopardy where the defendant’s possession of22 Nos. 12

‐ 3896 & 13

‐ 1034

the same firearm is uninterrupted are premised on the fact

that the unit of prosecution in § 922(g) cases is the gun pos

‐

session itself; one gun (or several guns simultaneously) pos

‐

sessed one time sustains one conviction. See United States v.

Cureton

, 739 F.3d 1032, 1041 (7th Cir. 2014); United States v.

Conley

, 291 F.3d 464 (7th Cir. 2002). Section 924(c)(1), on the

other hand, prohibits possessing a gun during a drug traf

‐ ficking offense. See § 924(c)(1). Because the statute ties the

gun possession charge to the underlying drug transaction,

the unit of prosecution is each predicate offense in which a

firearm is carried, used, or possessed with the intent to fur

‐

ther the drug crime, as long as there is some meaningful dif

‐

ference in the conduct that led to each predicate offense. Cu

‐

reton

, 739 F.3d at 1041–43 (finding two predicate offenses

supported only one § 924(c) conviction where the two predi

‐

cate offenses were committed simultaneously and without

any distinction in conduct); United States v. Paladino

, 401 F.3d

471, 478 (7th Cir. 2005); United States v. Cappas

, 29 F.3d 1187,

1190 (7th Cir 1994) (“[S]eparate convictions are permissible

[when]

... jury

... connect[s] each gun use to a separate predi

‐

cate offense.”). 3 So in a case involving two drug offenses

based on separate and distinct conduct, a defendant’s “car

‐

3 Constantino disagrees with our interpretation and urges us to find that

the unit of prosecution is “the possession, not the predicate drug traffick

‐ ing crimes,” Appellant Br. p. 23, or at the very least that the statute is

ambiguous and the rule of lenity requires us to interpret it in his favor.

But in our view, the statute unambiguously authorizes a separate convic

‐

tion for each distinct predicate offense in which a firearm is used, car

‐

ried, or possessed in furtherance of the crime, Cureton

, 739 F.3d at 1043;

Cappas

, 29 F.3d at 1190, so the rule of lenity does not apply, Chapman v.

United States

, 500 U.S. 453, 463 (1991).Nos. 12

‐ 3896 & 13

‐ 1034 23

rying of a gun during each of them constitute[s] two viola

‐

tions of section 924(c).” Paladino

, 401 F.3d at 478–79.

Here, Constantino was convicted of two separate drug

offenses, occurring on February 8 and February 14. The jury

found that he possessed a gun in furtherance of each offense.

Therefore, his two convictions for gun possession related to

two separate drug offenses, not the same offense as prohibit

‐

ed by the Double Jeopardy Clause. See id. (finding separate

drug offenses where defendant conducted two separate

drug transactions on the same day). It is irrelevant that the

same gun was used in each drug transaction or that Con

‐

stantino had continuous possession of it; all that matters is

that a firearm was involved in furthering each distinct drug

offense. See id. at 478 (concluding that whether defendant

used different guns or the same one was “of no signifi

‐ cance”).

But, Constantino argues, allowing continuous possession

to constitute separate possession

‐ in

‐ furtherance charges

leads to absurd results. He points out that a defendant who

sells drugs to multiple customers at different times on the

same day while possessing a gun could be subjected to mul

‐ tiple consecutive convictions under § 924(c), while an indi

‐

vidual who sells the same quantity of drugs to one customer

would not. Constantino is right that these hypothetical de

‐

fendants could end up with two very different sentences, but

this disparity is a result of Congress’s focus in passing §

924(c). The provision resulted from Congress’s recognition

that “[t]he presence of guns

... during a drug transaction

may increase the likelihood of violence erupting in what are

often already volatile situations,” United States v. Dickerson

,

705 F.3d 683, 689 (7th Cir. 2013), and was passed to target24 Nos. 12

‐ 3896 & 13

‐ 1034

defendants who choose to involve weapons in their drug

crimes. See, e.g.

, Muscarello v. United States

, 524 U.S. 125, 131–

32 (1998) (citing the bill’s sponsor’s statement that the provi

‐

sion sought “to persuade the man who is tempted to commit

a Federal felony to leave his gun at home”); United States v.

Diaz

, 592 F.3d 467, 473–74 (3d Cir. 2010). The amount of

drugs is not the dispositive factor; rather it is whether a fire

‐

arm was used, carried, or possessed to further a drug crime

that matters.

The resulting twenty

‐ five year sentence for Constantino’s

second gun possession conviction, as harsh as it may seem,

is exactly what § 924(c) demands. “In the case of a second or

subsequent conviction under this subsection, the person

shall be sentenced to a term of imprisonment of not less than

25 years” and “no term of imprisonment imposed

... under

this subsection shall run concurrently with any other term of

imprisonment imposed

... .” § 924(c)(1)(C)

‐ (D). Congress

made a “‘plain statement of its intent to stack punishments

in

... § 924(c)(1).’” United States v. Seawood

, 172 F.3d 986, 989

(7th Cir. 1999) (quoting United States v. Overstreet

, 40 F.3d

1090, 1095 (10th Cir. 1994)). But we also recognize the au

‐ thority of the United States Attorneys to exercise prosecuto

‐

rial discretion and serve the interests of justice in deciding

what charges to bring against a defendant. Given the facts of

this case, including that Constantino was a new offender and

did not actually use the gun he possessed during his drug

crimes, we do not understand the prudence of charging him

with two § 924(c) offenses. But we do not have the authority

to step into the place of the prosecutors and use the discre

‐

tion they failed to exercise. Regardless of what we may think

of the decision to charge Constantino twice under § 924(c),

the charges do not violate double jeopardy or run afoul ofNos. 12

‐ 3896 & 13

‐ 1034 25

Congressional intent and were permissible. The jury found

that Constantino made a choice to have a gun with him to

further the execution of each of his drug deals on February 8

and 14, so the two convictions and his sentence stand.

III. CONCLUSION

The convictions and sentences of Constantino and Nicho

‐

las Cejas are A FFIRMED

.