Appeal from the United States District Court for the District of Columbia (No. 01cr00396-01).
The opinion of the court was delivered by: Karen Lecraft Henderson, Circuit Judge
Before: HENDERSON and GRIFFITH, Circuit Judges, and WILLIAMS, Senior Circuit Judge.
Abdur Mahdi was charged with operating a narcotics distribution enterprise in northwest Washington, D.C. and was convicted of 48 criminal counts involving possessing/distributing narcotics, racketeering, firearms use and possession, assault, murder, perjury and obstruction of justice. See 3d Re-typed Indictment, United States v. Mahdi, Crim. No. 01-396-1 (July 14, 2003) (Indictment). The district court sentenced Mahdi to ten life sentences (concurrent with each other and with lesser terms of incarceration) followed by one 7-year and five 25-year consecutive sentences. Judgment, id. (Dec. 22, 2003). Mahdi challenges both his convictions and his sentences on various grounds. We affirm his convictions and sentences with a single exception: we vacate his conviction on two counts of distribution of a controlled substance (cocaine base) and four counts of possessing with intent to distribute (PWID) a controlled substance (cocaine, cocaine base and marijuana), which together merge into six corresponding counts of distribution and PWID within 1,000 feet of a school, and remand for resentencing.
Viewed in the light most favorable to the government, see United States v. Lloyd, 515 F.3d 1297, 1298-99 (D.C. Cir. 2008), the evidence establishes the following facts. Mahdi purchased narcotics from a man known as "Radar" and distributed them on the street either himself or through others. Initially, Mahdi purchased "crack" cocaine in bulk to resell in the street sales but later began to purchase cocaine powder and "cook" the crack himself, stretching the amounts with baking soda. In the course of his drug distribution operation, Mahdi conspired to commit or did commit more than twelve violent crimes.
The District of Columbia Metropolitan Police Department (MPD) investigated Mahdi over several years, using undercover operatives, observation posts, video surveillance, wiretaps and search warrants. Particularly effective were undercover drug purchases conducted or overseen by MPD Officer Cynthia Lovely in March 2000, which formed the basis for various distribution counts and for warrants to search Mahdi's house and his automobiles (where he "stashed" drugs) which MPD executed in December 1999, August 2000, December 2000 and November 2001. The searches yielded, inter alia, over 600 grams of cocaine base as well as five firearms and corresponding ammunition.
Mahdi was arrested on November 15, 2001 after a grand jury returned a 324-count indictment against him and 15 others on November 8, 2001. After all of Mahdi's co-defendants entered guilty pleas, the indictment was filed in its final form ("[r]e-typed"), naming Mahdi alone as defendant and charging him with forty-nine counts involving drugs, firearms and acts of violence, including violations of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962(d),*fn1 the Violent Crimes in Aid of Racketeering statute (VICAR), 18 U.S.C. § 1959,*fn2 and 18 U.S.C. § 924(c).*fn3 See Indictment, Appellant's App. 201.*fn4 Mahdi's trial began on April 14, 2003 and, on July 31, 2003, the jury returned a verdict convicting Mahdi of 48 counts.*fn5 On December 4, 2003, the district court sentenced Mahdi to various concurrent prison terms, including ten life sentences followed by one 7- and five 25-year consecutive terms. Mahdi filed a timely notice of appeal.
Mahdi contests his convictions and sentence on various grounds. We address each ground seriatim.
A. Multiplicitous Indictment
When an indictment charges the same offense in more than one count, it often creates "a problem known as 'multiplicity,' " United States v. Weathers, 186 F.3d 948, 951 (D.C. Cir. 1999) (quoting 1A Charles Alan Wright, Federal Practice & Procedure §§ 142, 145, at 7-8 (3d ed.1999)), because "the Double Jeopardy Clause protects not only against 'a second prosecution for the same offense' after acquittal or conviction, but also against 'multiple punishments for the same offense,' " id. (quoting North Carolina v. Pearce, 395 U.S. 711, 717 (1969)). "Whether defendant has in fact been punished twice for the same offense, however, depends upon what 'the legislature intended.' " Id. (quoting Jones v. Thomas, 491 U.S. 376, 381 (1989)). Mahdi argues that eight of the VICAR counts, three of the "sub-conspiracies" in the RICO count and five of the section 924(c) counts were also charged as violations of D.C. law, which means the latter are multiplicitous lesser included offenses of the VICAR, RICO and section 924(c) counts for which he may not be punished a second time. The government counters that Mahdi waived the multiplicity objection because he did not raise it until this appeal. See Weathers, 186 F.3d at 952 ("According to Circuit precedent, multiplicity claims of the kind presented here are defenses based on 'defects in the indictment' within the meaning of Rule 12(b)(2), and hence are waived under Rule 12(f) if not raised prior to trial."); see Fed. R. Crim. P. 12(b)(3) (formerly 12(b)(2)); id. R. 12(e) (formerly 12(f)). Mahdi asserts, in turn, he can show "good cause" for his failure to raise an objection below so as to excuse the waiver. See id. ("For good cause, the court may grant relief from the waiver."); Weathers, 186 F.3d at 952-53. We need not resolve the parties' waiver dispute. Because Mahdi did not object in the district court to the alleged multiplicity, we review his arguments for plain error. See United States v. Kelly, 552 F.3d 824, 829 (D.C. Cir. 2009) ("We apply plain error review to the double jeopardy issue because [the defendant] 'allow[ed][the] alleged error to pass without objection' below." (quoting In re Sealed Case, 283 F.3d 349, 352 (D.C. Cir. 2002))) (alteration in original); see also Appellant's Br. 8 (seeking plain error review). Under the plain error standard, " 'we will correct a district court's error only if (1) there is in fact an error to correct; (2) the error is "plain"; (3) it "affects substantial rights"; and (4) it "seriously affects the fairness, integrity, or public reputation of judicial proceedings." ' " United States v. Walker, 545 F.3d 1081, 1086-87 (D.C. Cir. 2008 (quoting United States v. Taylor, 497 F.3d 673, 676 (D.C. Cir. 2007) (quoting Johnson v. United States, 520 U.S. 461, 466-67 (1997))). Applying this standard, we conclude that the district court did not plainly err in failing to strike the alleged lesser included offenses from the indictment.
Mahdi contends the indictment is multiplicitous in three respects. His primary contention is that eight of the VICAR assault and murder counts (Counts 6, 9, 11, 13, 15, 17, 24, 26) are multiplicitous of the analogous D.C. criminal counts of assault with a dangerous weapon (Count 5), assault with intent to murder while armed (Counts 8, 10, 14, 16, 23, 25) and first degree murder while armed (Count 12). The court did not plainly err in failing sua sponte to strike the D.C. or federal counts as multiplicitous. To determine multiplicity vel non, courts generally apply the Blockburger test: " '[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not,' " i.e., whether either is a lesser included offense of the other. Weathers, 186 F.3d at 951 (quoting Blockburger v. United States, 284 U.S. 299, 304 (1932)). The Blockburger test, however, provides only a canon of construction, not a "conclusive presumption of law." Garrett v. United States, 471 U.S. 773, 779 (1985); see United States v. McLaughlin, 164 F.3d 1, 8 (D.C. Cir. 1998) ("As a tool of statutory construction, the Blockburger test is not absolutely controlling." (citing Albernaz v. United States, 450 U.S. 333, 340 (1981))). " 'There is nothing in the Constitution which prevents Congress from punishing separately each step leading to the consummation of a transaction which it has power to prohibit and punishing also the completed transaction.' "
Garrett, 471 U.S. at 779 (quoting Albrecht v. United States, 273 U.S. 1, 11 (1927)) (emphasis in Garrett). Thus, "the Blockburger presumption must of course yield to a plainly expressed contrary view on the part of Congress," that is, "when the legislative intent is clear from the face of the statute or the legislative history." Id. (citing Missouri v. Hunter, 459 U.S. 359, 368 (1983); Albernaz, 450 U.S. at 340; Whalen v. United States, 445 U.S. 684, 691-92, (1980)); McLaughlin, 164 F.3d at 8-9 ("Several cases illustrate that where there is clear evidence of legislative intent, multiple sentences are possible even though a Blockburger analysis would indicate otherwise."); United States v. White, 116 F.3d 903, 932 (D.C. Cir. 1997) ("Even if one crime is a lesser included offense of another, punishments may be imposed for both 'if Congress intended that they be imposed.' " (quoting United States v. Baker, 63 F.3d 1478, 1494 (9th Cir. 1995), cert. denied, 516 U.S. 1097 (1996))). Accordingly, the Court in Garrett concluded that, "logic supports the conclusion, also indicated by the legislative history," that in enacting the "Continuing Criminal Enterprise" statute (CCE), the Congress "intended separate punishments for the underlying substantive predicates and for the CCE offense." Garrett, 471 U.S. at 795. We have similarly concluded that "RICO is intended to supplement, rather than replace, existing criminal provisions" and that therefore "although the drug conspiracy is a lesser included offense of the RICO conspiracy, cumulative punishments are authorized," noting that "the circuits that have held drug conspiracies to be lesser included offenses of RICO conspiracies or have not resolved the issue nevertheless allow cumulative sentences to stand on the ground that the Congress 'intended to permit, and perhaps sought to encourage, the imposition of cumulative sentences for RICO offenses and the underlying crimes.' " White, 116 F.3d at 932 (quoting United States v. Kragness, 830 F.2d 842, 864 (8th Cir. 1987)).
The VICAR statute's language supports the same sort of Congressional intent. It sets out specific punishments for anyone who "murders, kidnaps, maims, assaults with a dangerous weapon, commits assault resulting in serious bodily injury upon, or threatens to commit a crime of violence against any individual in violation of the laws of any State or the United States, or attempts or conspires so to do" in return for "anything of pecuniary value from an enterprise engaged in racketeering activity, or for the purpose of gaining entrance to or maintaining or increasing position in an enterprise engaged in racketeering activity." 18 U.S.C. § 1959(a) (emphasis added). The quoted language at least suggests that the Congress intended to impose for a VICAR violation a cumulative penalty separate from and in addition to what is authorized by a particular "law of a State or the United States," as it did in enacting RICO and the CCE statute, based upon the showing of an additional statutory element -in the case of VICAR, that the underlying violent offense bears a certain relationship to racketeering activity. At least this is a reasonable construction, particularly in light of the close relationship between VICAR and RICO, the latter of which, as already noted, we have held to authorize separate sentences for both RICO and a lesser included offense. See 18 U.S.C. § 1959(b)(1) (VICAR " 'racketeering activity' has the meaning set forth in [RICO] section 1961"). Thus, " 'absent precedent from either the Supreme Court or this court' " that VICAR does not authorize cumulative punishments, the " 'asserted error . . . falls far short of plain error.' " United States v. Perry, 479 F.3d 885, 893 n.8 (D.C. Cir. 2007) (quoting United States v. Vizcaino, 202 F.3d 345, 348 (D.C. Cir. 2000)).
Second, Mahdi asserts that the RICO conspiracy count (Count 2) "subsumes . . . three subsidiary D.C. murder conspiracies" contained in it. Appellant's Br. 10. The D.C. murder conspiracies identified, however, were not charged as separate counts but merely as racketeering acts within the RICO count. Indictment 23-29. Thus, there is no multiplicity. See Weathers, 186 F.3d at 951 ...