A conviction under 18 U.S.C. § 924(c) requires either active employment of a firearm or possession of the weapon to satisfy the “use” or “carry” elements, respectively. Bousley v. United States, 523 U.S. 614, 616 (1998). An 18 U.S.C. §924(c) count can be alleged as a conspiracy. see 18 U.S.C. § 924(o). However, it is important to note, and for your attorney to argue, that one conspiracy is one count of criminal conduct under §924. United States v. Broce, 488 U.S. 563, 570 (1989); Braverman v. United States, 317 U.S. 49, 52 (1942) (“[The unlawful activity] does not become several conspiracies because it continues over a period of time.”). If the court determines an overarching conspiracy exists, separate § 924(c) charges may not be stacked for each conspiratorial activity without implicating the Double Jeopardy Clause. See United States v. Luskin, 926 F. 2d 372, 376–78 (4th Cir. 1991); United States v. Casey, 776 F. Supp. 272, 278 (E.D. Va. 1991, Ellis, J).
If a conspiracy is found, a defendant may be held responsible for foreseeable actions of a co-conspirator under one broad conspiracy count, or under relevant conduct for sentencing purposes. However, a defendant may not repeatedly be held responsible for a co-conspirator's separate offenses as the defendant's own repeated multiple substantive charges. For example, if a co-defendant repeatedly uses a firearm outside the presence of the defendant, the defendant cannot repeatedly be charged substantively under §924(c) for that offense. If a conspiracy is found, and the use of the firearm was foreseeable, the defendant may be charged with the action through conspiracy liability once, through one count of conspiracy to violate §924(c). Broce, 488 U.S. at 570; Braverman, 317 U.S. at 52. However, each and every occasion that a co-defendant used a firearm outside the presence of the defendant, the defendant cannot be charged with a substantive §924(c) offense through conspiracy liability. This would violate double jeopardy as the actual offense would be the same conspiracy to violate §924(c) each time rather than the substantive offense. See Luskin, 926 F. 2d at 376–78; Casey, 776 F. Supp. at 278. It is important that your attorney critically examine the evidence to determine if you are actually being held responsible under conspiracy liability multiple times. If so, and your attorney can show this to the court, some, or perhaps all of your charges may be dismissed as a matter of law. Contact Harris, Carmichael, & Ellis, PLLC for a free consultation to discuss these issues in your case.