U.S. v. Kaiser

• Citation: 893 F.2d 1300
• Decision Date: 09 February 1990
• Docket Number: No. 86-5626,86-5626
• Parties: -721, 90-2 USTC P 50,338 UNITED STATES of America, Plaintiff-Appellee, v. Gerald KAISER, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1300

893 F.2d 1300

65 A.F.T.R.2d 90-721, 90-2 USTC P 50,338

UNITED STATES of America, Plaintiff-Appellee, v. Gerald KAISER, Defendant-Appellant.

No. 86-5626.

United States Court of Appeals,

Eleventh Circuit.

Feb. 9, 1990.

As Amended March 15, 1990.

Theodore J. Sakowitz, Federal Public Defender, Richard C. Klugh, Jr., Asst. Federal Public Defender, Miami, Fla., Gerald Kaiser, Lauderhill, Fla., for defendant-appellant.

Dexter W. Lehtinen, U.S. Atty., Robert Bondi, Linda Collins Hertz, Sonia Escobio O'Donnell, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before JOHNSON and ANDERSON, Circuit Judges, and ATKINS ^*, Senior District Judge.

ANDERSON, Circuit Judge:

Appellant, Gerald Kaiser, pleaded guilty to a four count tax indictment. Counts one and two of the indictment alleged tax evasion in violation of 26 U.S.C. Sec. 7201 for the calendar years 1979 and 1980. Both counts alleged that Kaiser "did willfully and knowingly attempt to evade and defeat a large part of the income tax due and owing by him ... for the calendar year [1979, count one; 1980, count two], by signing ... a false and fraudulent U.S. Individual Income Tax Return, Form 1040...." Counts three and four of the indictment alleged that Kaiser violated 26 U.S.C. Sec. 7206(1) by filing false tax returns for 1979 and 1980, the same returns that are the subject of counts one and two. Counts three and four allege that Kaiser "did willfully and knowingly make and subscribe a United States Individual Income Tax Return, Form 1040, for the calendar year [1979, count three; 1980, count four], which was verified by a written declaration that it was made under the penalties of perjury ... which said Individual Income Tax Return he did not believe to be true and correct as to every material matter...."

Counts one and three, involving the 1979 tax return, both allege that Kaiser stated on his Form 1040 that his taxable income for 1979 was $46,045.00 and that the tax due and owing was $14,310.00, when he knew and believed that his taxable income was substantially higher. Counts two and four, involving the 1980 tax return, both allege that Kaiser stated that his taxable income for 1980 was $43,680.00 and that the tax due was $14,674.00, when he knew it to be higher.

Kaiser pleaded guilty to all four counts. The district court sentenced Kaiser to two years in prison on each of counts one and two, the periods of confinement to be consecutive, and $10,000 in fines on each count. On counts three and four, the district court placed the defendant on five years probation for each count, concurrent to each other and consecutive to counts one and two. The court further ordered $2,500 fines on each of counts three and four.

Kaiser appealed, arguing inter alia that the imposition of consecutive sentences for filing a false tax return and for tax evasion by filing the same false return violates the Double Jeopardy Clause of the Fifth Amendment. This court held that Kaiser waived his right to raise a double jeopardy claim when he entered his guilty pleas, and therefore we did not reach the merits of the double jeopardy issue. United States v. Kaiser, 833 F.2d 1019 (11th Cir.1987) (Table). The United States Supreme Court subsequently vacated that decision and remanded the case for further consideration in light of United States v. Broce, 488 U.S. ----, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989). Kaiser v. United States, --- U.S. ----, 109 S.Ct. 1105, 103 L.Ed.2d 170 (1989). Upon reconsideration, we conclude (1) that Kaiser's guilty plea did not waive his right to raise the double jeopardy claim and (2) that the convictions and consecutive sentences for tax evasion and for filing a false return constitute, in this case, a violation of the Double Jeopardy Clause. ¹

I. WAIVER OF THE DOUBLE JEOPARDY CLAIM

Once a conviction upon a guilty plea has become final, the general rule is that any challenge to the conviction is limited to whether the underlying plea was counseled and voluntary. United States v. Broce, 488 U.S. at ----, 109 S.Ct. at 762. Here, Kaiser's claims that his plea was involuntary and that he received ineffective assistance of counsel are wholly without merit. Ordinarily, then, he would be barred from challenging his conviction. However, the Supreme Court has recognized that there are exceptions to the rule barring collateral attacks on a guilty plea. One such exception, established in Menna v. New York, 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975) (per curiam), and Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), and explained recently in Broce, occurs when a charge against a defendant, judged on the basis of the record that existed at the time the guilty plea was entered, is one the State may not constitutionally prosecute. ² See Broce, 488 U.S. at ----, 109 S.Ct. at 765. Although the Supreme Court held that Broce itself did not fit within the Menna/Blackledge exception, the case presently before us does fit within that exception, and therefore Kaiser's plea did not waive his right to challenge his conviction.

In Broce, the defendants pleaded guilty to an indictment that, on its face, described separate offenses (two different conspiracies). On appeal, the defendants argued that the separate conspiracies identified in the indictment were actually smaller parts of one overarching conspiracy, and they contended that conviction and punishment for more than one conspiracy violated double jeopardy protections. The Court held, however, that because the indictment on its face alleged two distinct conspiracies, the defendants' guilty pleas admitted guilt for two conspiracies, not one. The defendants could not show that there was one conspiracy--thus establishing that their cumulative convictions and punishments violated double jeopardy--without relying on factual evidence outside the guilty plea record. The defendants were therefore barred from challenging their convictions.

In contrast to Broce, the present case does not require this court to rely on evidence outside the guilty plea record to determine that Kaiser's punishment violated the Double Jeopardy Clause. Kaiser asserts that his conviction and punishment for both the greater offenses charged in the indictment (the Sec. 7201 offenses) and the lesser included offenses charged (the Sec. 7206(1) offenses) violated the prohibitions of the Double Jeopardy Clause. The Double Jeopardy Clause of the Fifth Amendment prohibits the state from punishing a person twice for the same offense, Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977), and a greater offense and a lesser included offense are considered the "same offense" for purposes of Double Jeopardy Clause protection. While the government may charge a defendant with both a greater and a lesser included offense and may prosecute those offenses at a single trial, see Ohio v. Johnson, 467 U.S. 493, 500, 104 S.Ct. 2536, 2541, 81 L.Ed.2d 425 (1984), the court may not enter separate convictions or impose cumulative punishments for both offenses unless the legislature has authorized such punishment, Id; Ball v. United States, 470 U.S. 856, 861, 105 S.Ct. 1668, 1673, 84 L.Ed.2d 740 (1985); see also Brown v. Ohio, 432 U.S. at 169, 97 S.Ct. at 2227 (holding that the Double Jeopardy Clause prohibits successive prosecution and cumulative punishment for a greater and a lesser included offense).

In this case, whether the false return counts described in the indictment against Kaiser were lesser included offenses of the tax evasion counts can be determined from the face of the indictment. The court could not impose cumulative punishments for a greater and a lesser-included offense; to do so would violate double jeopardy protections. Therefore, under Broce, Kaiser's guilty plea did not waive his double jeopardy claim, and we must address the merits of the double jeopardy issue. ³

II. THE DOUBLE JEOPARDY CLAIM

The Double Jeopardy Clause affords a defendant three basic protections: "[I]t protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense." Brown v. Ohio, 432 U.S. at 165, 97 S.Ct. at 2225 (quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969) (footnotes omitted)). Because this case involves a single prosecution, only the third protection is relevant here.

The protection against multiple punishments is "designed to ensure that the sentencing discretion of courts is confined to the limits established by the legislature." Ohio v. Johnson, 467 U.S. at 499, 104 S.Ct. at 2540-41. Whether punishments are multiple, for purposes of double jeopardy analysis, is a question of legislative intent. Id. If the statutes under which the defendant was sentenced specifically authorize cumulative punishments for the same offense, a court may impose cumulative punishment without running afoul of the Double Jeopardy Clause. Missouri v. Hunter, 459 U.S. 359, 368, 103 S.Ct. 673, 679, 74 L.Ed.2d 535 (1983); United States v. Ricks, 817 F.2d 692, 698-99 (11th Cir.1987). If, however, the statute does not clearly authorize cumulative punishment, then the court must apply the test set out in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), to determine if the offenses are sufficiently distinguishable to permit the imposition of cumulative punishment. See Ohio v. Johnson, 467 U.S. at 499 n. 8, 104 S.Ct. at 2541 n. 8; Garrett v. United States, 471 U.S. 773, 779, 105 S.Ct. 2407, 2411, 85 L.Ed.2d 764 (1985) (holding that "the Blockburger rule is not controlling when the legislative intent is clear from the face of the statute or the legislative history").

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