U.S. v. Hebeka, 95-3040

• Decision Date: 16 July 1996
• Docket Number: No. 95-3040,95-3040
• Citation: 89 F.3d 279
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Michael K. HEBEKA, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 279

89 F.3d 279

UNITED STATES of America, Plaintiff-Appellant, v. Michael K. HEBEKA, Defendant-Appellee.

No. 95-3040.

United States Court of Appeals, Sixth Circuit.

Argued Nov. 28, 1995.

Decided July 16, 1996.

David O. Bauer, Asst. U.S. Atty., Office of the U.S. Attorney, Western Division, Toledo, OH, Richard A. Friedman (argued and briefed), U.S. Dept. of Justice, Criminal Division, Appellate Section, Washington, DC, for U.S.

Norman G. Zemmelman (argued and briefed), Britz & Zemmelman, Toledo, OH, for Michael K. Hebeka.

Before: BOGGS and DAUGHTREY, Circuit Judges; McKEAGUE, District Judge. ^*

DAUGHTREY, Circuit Judge.

This case is before the court on appeal for the second time. The defendant, Michael Hebeka, was originally charged and convicted under a three-count indictment with food-stamp fraud. See United States v. Hebeka, 796 F.Supp. 268 (N.D.Ohio 1992) (Hebeka I ). On the initial appeal, we determined that conviction under both Counts 1 and 2 of the indictment violated the Double Jeopardy Clause and suggested that the district court should also "consider whether a consecutive sentence as to Count 3 is authorized under double jeopardy analysis." United States v. Hebeka, 25 F.3d 287, 291 (6th Cir.1994) (Hebeka II ). On remand, the district court set aside the third count of the indictment, finding that it violated the Double Jeopardy Clause. The district court then sentenced Hebeka under pre-guidelines sentencing provisions, in conformity with its prior determination that the sentencing guidelines were inapplicable to Hebeka even though the criminal conduct for which he was convicted "straddled" the date the guidelines took effect. Hebeka I, 796 F.Supp. at 273.

The government now appeals, contending that conviction under both Counts 1 and 3 is constitutionally permissible and, moreover, that the district court should have sentenced the defendant under the sentencing guidelines. We conclude that the district court was correct in setting aside the conviction under Count 3 of the indictment, but that the case must be remanded for resentencing under the sentencing guidelines.

FACTUAL BACKGROUND

By this time, the facts in this case are well-documented and no longer open to dispute. In 1984, Hebeka owned a grocery store in Toledo that was licensed to accept government food stamps. That year, he was convicted of food-stamp fraud and barred for life from participating in the program. Nevertheless, in April 1985, Hebeka made a sham sale of the market to one Dennis Alfred, specifically to allow Hebeka to circumvent his banishment from the federal food-stamp program. At Hebeka's request, Alfred submitted a false application to obtain a new license so that the market could continue to accept food stamps. The application failed to disclose that Hebeka was the store's constructive owner and its manager, in violation of the program's regulations. From April 1985 until May 1991, Hebeka redeemed $7.2 million in food stamps through the store, while selling only $3.9 million worth of food. Of the $7.2 million, $3.45 million of the food stamps had been purchased for cash.

In 1991, Hebeka was indicted for two violations of the Food Stamp Act, 7 U.S.C. § 2024(c), and one violation of the fraudulent claims statute, 18 U.S.C. § 287. Count 1 charged Hebeka with redemption of $7.2 million worth of food stamps to the Department of Agriculture. Count 2 charged that between January 1986 and May 1991, Hebeka presented the Department of Agriculture with $3.45 million worth of food stamps that had been purchased for cash. Count 3 charged that between April 1985 and May 1991, Hebeka made false claims to the Department of Agriculture by presenting $7.2 million worth of food stamps for redemption to the Department of Agriculture.

Hebeka was convicted on all three counts after a jury trial in January 1992. The district court sentenced him to concurrent five-year sentences on the first two counts and to a consecutive five-year sentence on Count 3. At sentencing, the defendant objected to the use of the sentencing guidelines, on the ground that they could not be applied to conduct occurring before the effective date of the Sentencing Reform Act, November 1, 1989. Finding that the offenses for which the defendant had been convicted were not "continuing offenses," the district court held that the sentencing guidelines did not apply, even though the misconduct "straddled" the effective date of the Sentencing Reform Act. Hebeka I, 796 F.Supp. at 272-73.

Hebeka appealed his conviction, arguing that Counts 1 and 2 were multiplicitous. We agreed, holding that the two counts should merge, because they "overlap in respect to the amount of food stamps presented illegally." Hebeka II, 25 F.3d at 290. We remanded the case with an order to vacate one of the first two counts and to resentence Hebeka accordingly, adding that the district court should consider the double jeopardy implications of convictions on both § 2024(c), the Food Stamp Act, and § 287, the general fraudulent claims statute.

On remand, the district court not only vacated the defendant's conviction on Count 2, as directed by this court on appeal, but also vacated the conviction on Count 3, finding that the false claims conviction was for the "same offense" under the Double Jeopardy Clause as the remaining conviction for food stamp fraud. The district judge ruled that "[t]he statutory elements of both § 2024(c) and § 287 are identical. In fact, both statutes seek to protect the same victims and the same interest--the property of the United States government." The district court also ruled that the government had waived its argument concerning the applicability of the sentencing guidelines to Hebeka's conviction and sentenced the defendant under pre-guidelines provisions to five years incarceration.

The government now appeals both the district court's decision to vacate Count 3 and

its failure to sentence the defendant under the sentencing guidelines.

THE DOUBLE JEOPARDY ISSUE

The Fifth Amendment of the United States Constitution grants individuals protection from being "subject for the same offense to be twice put in jeopardy of life or limb." The Double Jeopardy Clause prohibits multiple punishments for the same criminal offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). The long-established test to determine whether a violation of this right has occurred is that of Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), in which the Court held 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 that the other does not." Id. at 304, 52 S.Ct. at 182.

As we noted in Hebeka I, because of refinements of Blockburger in recent Supreme Court decisions, the test applies "only after other techniques of statutory construction have proved to be inconclusive. The first step is for the court to inquire 'whether Congress intended to punish each statutory violation separately.' " Pandelli v. United States, 635 F.2d 533, 536 (6th Cir.1980)(quoting Jeffers v. United States, 432 U.S. 137, 155, 97 S.Ct. 2207, 2218, 53 L.Ed.2d 168 (1977)). In this case, as we further noted in Pandelli, there appears to be nothing in the legislative history that addresses the issue of multiple punishments under the Food Stamp Act, 7 U.S.C. § 2024(c), id. at 536, nor has our research turned up any information concerning Congressional intent with regard to prosecutions both under the fraudulent claims statute, 18 U.S.C. § 287, and under more specific fraud legislation, such as that contained in the Food Stamp Act. We are thus left to apply the Blockburger test to facts of this case.

Section 2024(c) of the Food Stamp Act provides that "[w]hoever presents, or causes to be presented, coupons for payment or redemption of the value of $100 or more, knowing the same to have been received, transferred, or used in any manner in violation of the provisions of this chapter or the regulations issued pursuant to this chapter, shall be guilty of a felony." Section 287 provides that "[w]hoever makes or presents to any person or officer in the civil, military, or naval service of the United States, or to any department or agency thereof, any claim upon or against the United States, or any department or agency thereof, knowing such claim to be false, fictitious, or fraudulent, shall be imprisoned not more than five years."

The government argues that each of these provisions requires proof of an element that the other does not, thus making them separate offenses for purposes of the Double Jeopardy Clause. The argument goes something like this: The Food Stamp Act addresses the presentation of fraudulent claims made as the result of violations of the Act or the regulations promulgated under the Act, which the general fraud statute obviously does not, while the fraudulent claims statute requires the presentation of a fraudulent claim to an agency of the government, an element missing from the Food Stamp Act. Fraudulent food stamp coupons, for example, could be presented to a bank for redemption, rather than to a federal agency, and a violation of § 2024(c) would nevertheless result.

As the defendant points out, however, § 287 does not require that the person committing the fraud submit the claim directly to the government. He cites United States v. Murph, 707 F.2d 895 (6th Cir.) (per curiam), cert. denied, 464 U.S. 844, 104 S.Ct. 145, 78 L.Ed.2d 136 (1983), to support his argument. In Murph, the defendant was charged with violating § 287 for fraudulently claiming a tax refund. He took his false return to a "tax return discounter" and received 50 percent of the refund and the other 50 percent would be sent to the discounter. Murph argued "that he did not cause the tax...