U.S. v. Barrington

• Citation: 662 F.2d 1046
• Decision Date: 21 October 1981
• Docket Number: No. 80-5201,80-5201
• Parties: UNITED STATES of America, Appellee, v. James E. BARRINGTON, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 1046

662 F.2d 1046

UNITED STATES of America, Appellee, v. James E. BARRINGTON, Appellant.

No. 80-5201.

United States Court of Appeals,

Fourth Circuit.

Argued May 8, 1981.

Decided Oct. 21, 1981.

Joseph R. Lassiter, Jr., Norfolk, Va. (Hofheimer, Nusbaum, McPhaul & Brenner, Norfolk, Va., on brief), for appellant.

Larry W. Shelton, Asst. U. S. Atty., Norfolk, Va. (Justin W. Williams, U. S. Atty., Norfolk, Va., Jacob Lutz, Third Year Law Student on brief), for appellee.

Before BUTZNER and MURNAGHAN, Circuit Judges, and RAMSEY ^*, District Judge.

MURNAGHAN, Circuit Judge:

As was all Gaul, the initial indictment, a superseding indictment and a superseding criminal information were in every case divided into three parts. In each there were three counts charging fraudulent misrepresentation, Count I as to the Aid for Dependent Children ("AFDC") program, Count II as to the foodstamps program, and Count III as to the Medicaid program. The initial indictment was filed July 14, 1980, the superseding indictment on August 25, 1980, and the superseding criminal information on September 4, 1980.

The superseding indictment, like the initial indictment, charged, in each count, a violation of the same statute, 18 U.S.C. § 287. (The superseding indictment added references to the aiding and abetting statute, 18 U.S.C. § 2(b).) Both indictments repeated in each count the allegation that "he then well knew the claims to be false and fraudulent in that he was both employed and received workmen's compensation during this period." "This period" in Counts I and II of each indictment was April 1, 1977 until February 28, 1978, and, in Count III, April 1, 1977 until January 31, 1978.

The initial indictment charged that the defendant "caused to be presented" claims which were false and fraudulent to the United States Department of Agriculture in Count II, and to the United States Department of Health, Education and Welfare in Counts I and III. The superseding indictment amended the charges so that the defendant allegedly "did present" claims that were false and fraudulent to the same United States departments "through the Norfolk Division of Social Services." Otherwise, the indictment and the superseding indictment did not differ.

The criminal information's three counts charged violations of 42 U.S.C. §§ 601 and 1307(a) as to AFDC, 7 U.S.C. §§ 2011 and 2024(b) as to foodstamps, and 42 U.S.C. §§ 1396a and 1396h(a)(3) as to Medicaid. However, they concerned precisely the same activities as dealt with in the two indictments, being alike as to the time frame, and charging in each count guilty knowledge "that he received income from his employment as well as workmen compensation benefits", or that "he well knew that he was ineligible ... due to his employment and his receipt of workmen's compensation," or that he "failed to disclose ... the fact that he had become employed as well as his receipt of workmen's compensation benefits...."

Count I charged misrepresentations made to the Secretary of HEW through the Norfolk, Virginia Division of Social Services (a state agency). Count II charged acquisition of foodstamps through the same state agency. Count III asserted fraudulent nondisclosure to the state agency of the receipt of wages and workmen's compensation benefits.

On April 1, 1976, the defendant Barrington in the course of applying for several welfare benefits from the Norfolk, Virginia Division of Social Services, filed a true and correct statement as to his financial condition. The single, consolidated statement qualified him for benefits under all three programs. When he was approved on June 2, 1976 (retroactive to April 1, 1976) as eligible for the benefits, the April 1, 1976 statement was still correct.

Under the regulations, Barrington had a duty to report promptly any change in employment or receipt of additional income. Subsequently, between March 26, 1977 and February 28, 1978, Barrington earned approximately $3851. In the period April, 1977 until or through February, 1978, Barrington also received, without notifying the Virginia Social Services agency, three workmen's compensation benefits, aggregating $2,793.60. Although aware of his responsibility Barrington failed to report the wages or the workmen's compensation payments. He continued to benefit under the three welfare programs up through February, 1978.

The initial indictment of July 14, 1980 charged three felonies. The defendant pleaded not guilty.

Then there came the superseding indictment of August 25, 1980, followed by the superseding criminal information filed September 4, 1980, to which, as part of a plea bargain, the defendant pleaded guilty. The charges were misdemeanors:

Count I, 42 U.S.C. § 1307(a) (Welfare Fraud), maximum penalty one year and $1,000;

Count II, 7 U.S.C. § 2024(b) (Foodstamps Violations), maximum penalty one year and $1,000;

Count III, 42 U.S.C. § 1396h(a)(3) (Medical Assistance Grants Penalties), maximum penalty one year and $10,000.

On October 6, 1980, pursuant to the guilty pleas, the district court sentenced Barrington to one year under each count, to be served consecutively, i. e., a total imprisonment of 3 years. A fine aggregating $7500 ($1,000 on Count I, $1,000 on Count II, and $5,500 on Count III) was also imposed. All but 180 days of the imprisonment were suspended, but a probation of 4 years and 185 days (amounting, with the 180 days to be served, to 5 years) was imposed on condition that the defendant make monthly payments of $150 each until the $7500 fine has been satisfied. Failure to maintain payment of the fine in accordance with the monthly terms prescribed would lead to revocation of probation and reincarceration for the suspended period.

Counsel for defendant argues that essentially there was but a single offense, or, at any rate, what defendant did was subject to but a single punishment. James Barrington, he points out, simply did not go to the Norfolk, Virginia Division of Social Services and enlighten that agency about changes in his financial status. Counsel emphasizes that bureaucratically, administration of the plans under the several benefit programs had been assigned to the Commonwealth of Virginia, and that it, or its surrogate, the Norfolk Division of Social Services, in conformity with those plans (for which federal approval is required ¹) had unified the application form so that someone such as Barrington was called upon to file but a single statement, rather than three separate statements, one under each of the three federal statutes. ²

It is undisputed from the record that, from June 2, 1976 until March 26, 1977, receipt of AFDC benefits, foodstamps and Medicaid by the defendant was altogether lawful. Such receipts became unlawful upon, and solely by reason of, Barrington's post-March 26, 1977 wages and workmen's compensation benefits. When Barrington pleaded guilty, the assistant United States Attorney stated: "At the time he applied, he was eligible for these benefits.... And he became ineligible later on and his failure to report changed his circumstances."

The government contends, on the other hand, that there were three separate offenses, susceptible of three distinct criminal penalties. The prosecutor relied for that proposition primarily on the decision in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), recently reaffirmed in Albernaz v. United States, 450 U.S. ----, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981):

Each of the offenses created requires proof of a different element. The applicable rule is that where 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.

284 U.S. at 304, 52 S.Ct. at 182.

The statement constitutes a "rule of statutory construction." Albernaz v. United States, supra, 450 U.S. at ----, 101 S.Ct. at 1143; Whalen v. United States, 445 U.S. 684, 691, 100 S.Ct. 1432, 1437, 63 L.Ed.2d 715 (1980). Only if the answer proves to be that the defendant committed separate crimes for which Congress intended that he should be subjected to separate pyramided sentences ³ does any issue of double jeopardy in the constitutional sense under the Fifth Amendment arise. Addressing the question of statutory construction, the first thing to note is that obviously a variety of factual situations can be presented calling for variation in application of the Blockburger formula. At one extreme, we may have the situation where the defendant's activities are made up of a number of acts. He may have purchased narcotics in a foreign country and smuggled them into the United States, thereafter distributing them to a variety of individuals. Obviously both the crimes of importation and of distribution have been separately committed. To prove importation, the government could stop once the accused had passed through customs and prior to any distribution. Correspondingly, to prove distribution, the government could concentrate exclusively on activities commencing only after the defendant had landed. Thus, when multiple acts are involved and they are susceptible of such disentanglement, it is customarily relatively easy for the prosecution to satisfy the Blockburger requirement that, to make out multiple crimes, there need only be a showing that each provision requires proof of a fact which the other does not. ⁴

Similarly, the activities of an accused, rather than combined to form one continuing activity, as in the case of importation and distribution referred to above, may also partake of independent non-continuous aggregations of facts making out two or more distinct crimes. As demonstrated in Blockburger itself, a sale of drugs on one day may constitute one crime and a separate sale of other drugs on the next day will constitute a separate independent crime, even though the...